[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6221 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. R. 6221
To direct the Secretary of Labor to promulgate an occupational safety
and health standard to protect workers from adverse air, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 3, 2023
Ms. Lee of California (for herself, Mr. Grijalva, Mr. DeSaulnier, Ms.
Crockett, Ms. Norton, Mr. Carson, Ms. Schakowsky, Ms. Ocasio-Cortez,
Mr. Schiff, Ms. Tlaib, Mr. Espaillat, and Mr. Huffman) introduced the
following bill; which was referred to the Committee on Education and
the Workforce
_______________________________________________________________________
A BILL
To direct the Secretary of Labor to promulgate an occupational safety
and health standard to protect workers from adverse air, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Smoke Mitigation and Occupational
Key Enhancements Act'' or ``SMOKE Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Climate change is making wildland fires more frequent
and longer lasting.
(2) Wildfire smoke is a mixture of air pollutants, of which
the principal public health threat is particulate matter.
(3) Wildfire smoke has been directly linked to poor air
quality that can lead to significant health effects and costs
to society (such as emergency department visits, hospital
admissions, and deaths, often due to respiratory ailments).
(4) In addition to climate change, other factors--land use,
large-scale insect infestation, fuel availability (including
invasive species such as highly flammable cheatgrass), and
management practices, including fire suppression--play an
important role in wildfire frequency and intensity.
(5) In summer 2023, smoke from wildfires in Canada drifted
into the United States, leading to extremely poor air quality
across the eastern United States. Since then, States across the
country have issued poor air quality alerts, with New York City
having reported the worst air quality in the world on June 7,
2023. Due to these fires, about 128 million Americans in 18
States were under air quality alerts.
(6) While officials have warned Americans to be mindful of
poor air quality conditions, including to limit time spent
outside, worker protections are unclear in these circumstances.
SEC. 3. OSHA STANDARDS.
(a) Proposed Standard.--Not later than 2 years after the date of
enactment of this Act, the Secretary of Labor shall, pursuant to
section 6(b) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 655(b)), in consultation with the Administrator of the
Environmental Protection Agency and the Secretary of Health and Human
Services (acting through the Director of the National Institute on
Occupational Safety and Health), and in accordance with the best
available evidence, promulgate a proposed standard on prevention of
workplace injury from exposure to adverse air.
(b) Final Standard.--Not later than 42 months after the date of
enactment of this Act, the Secretary shall promulgate a final standard
on prevention of workplace injury from exposure to adverse air that
shall--
(1) presume as feasible any requirement that--
(A) is substantially equivalent to a requirement
adopted by a State plan that has been approved by the
Secretary under section 18 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 667); and
(B) has been in effect for at least 1 year;
(2) at a minimum, include the requirements described in
section 4; and
(3) be effective and enforceable in the same manner and to
the same extent as any standard promulgated under section 6(b)
of the Occupational Safety and Health Act of 1970 (29 U.S.C.
655(b)).
(c) Interim Final Standard.--
(1) In general.--If the proposed standard described in
subsection (a) is not promulgated, not later than 2 years after
the date of enactment of this Act, the Secretary of Labor shall
promulgate an interim final standard on prevention of workplace
injury from exposure to adverse air not later than 2 years and
60 days after such date of enactment--
(A) to require covered employers to monitor the AQI
for PM2.5 and, if adverse air is present, communicate
the AQI for PM2.5 to the covered employees of such
covered employers; and
(B) that shall, at a minimum, include a requirement
to protect employees from discrimination or retaliation
for exercising the rights of the employees under the
interim final standard.
(2) Applicability of other statutory requirements.--The
following shall not apply to the promulgation of the interim
final standard under this subsection:
(A) The requirements applicable to occupational
safety and health standards under section 6(b) of the
Occupational Safety and Health Act of 1970 (29 U.S.C.
655(b)).
(B) The requirements of section 553(c) of chapter 5
and chapter 6 of title 5, United States Code.
(C) The requirements of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(3) Effective date of interim standard.--The interim final
standard shall--
(A) take effect on a date that is not later than 30
days after the promulgation of such standard;
(B) have the same legal effect and be enforceable
in the same manner and to the same extent as any
standard promulgated under section 6(b) of the
Occupational Safety and Health Act of 1970 (29 U.S.C.
655(b)); and
(C) be in effect until the final standard described
in subsection (b) becomes effective and enforceable.
SEC. 4. REQUIREMENTS FOR FINAL STANDARDS.
(a) In General.--The final standard promulgated under section 3(b)
shall include the following requirements:
(1) Controls related to monitoring.--Each covered employer
shall, at the start of each work day or shift, and every 2
hours thereafter, determine whether adverse air is present at
each covered workplace for each such work day or shift by
monitoring or obtaining the AQI for PM2.5 forecasts from--
(A) the Environmental Protection Agency;
(B) the Interagency Wildland Fire Air Quality
Response Program; or
(C) the United States Forest Service.
(2) Employer communication of potential adverse air
exposures.--Each covered employer shall establish and implement
a system to communicate the presence of adverse air in a
language and manner readily understandable by covered
employees, which shall include procedures that inform such
employees of the following:
(A) Each time during the workday when adverse air
affects the workplace of such employees.
(B) The protective controls described in paragraph
(3) available to employees to reduce exposure to
adverse air.
(C) The potential health impacts of breathing
adverse air without proper protection.
(D) The policy of the employer that employees are
encouraged to report to the employer, without fear of
discrimination or retaliation--
(i) the presence of adverse air in the
workplace; and
(ii) adverse symptoms, including asthma
attacks, difficulty breathing, or chest pain,
that the employee is at risk of experiencing if
exposed to adverse air.
(3) Protective controls.--Each covered employer shall
provide the following at each covered workplace of the
employer:
(A) Engineering controls.--
(i) In general.--Reduction of employee
exposure to adverse air by engineering controls
whenever feasible, such as by providing
enclosed buildings, structures, or vehicles
where the air is filtered to prevent exposure
to adverse air within such buildings,
structures, or vehicles.
(ii) Insufficient engineering controls.--If
engineering controls are insufficient to
prevent exposure to adverse air, reduction of
employee exposure to such air to the extent
feasible.
(B) Administrative controls.--Whenever engineering
controls are not feasible or do not reduce employee
exposures to adverse air, implementation, if feasible,
of administrative controls, such as relocating work to
a location where adverse air is not present, allowing
remote work, changing work schedules, reducing work
intensity, or providing additional rest periods.
(C) Personal protective equipment.--
(i) In general.--Whenever adverse air is
present, the provision of a sufficient number
of respirators that meet the requirements of
clause (ii) to all covered employees for
voluntary use and encouragement to employees to
use such respirators.
(ii) Respirators provided.--A respirator
provided under clause (i) shall be--
(I) a device approved by the
National Institute for Occupational
Safety and Health that effectively
protects the wearers from inhalation of
PM2.5, such as N95 filtering facepiece
respirators;
(II) cleaned or replaced as
appropriate; and
(III) stored and maintained in such
a way so that such respirators do not
present a health hazard to users.
SEC. 5. ADVERSE AIR RELATED LEAVE.
(a) In General.--In the case of an employee whose health would be
jeopardized by exposure to adverse air, such employee shall be entitled
to a total of 12 weeks of unpaid leave per 12-month period for the
purposes of avoiding such exposure at a covered workplace where the
employee is employed.
(b) Substitution of Paid Leave.--An employee may elect to
substitute any of the accrued paid vacation leave, personal leave, or
family leave of the employee for leave provided under subsection (a)
for any part of the 12-week period of such leave under such subsection.
(c) Employment Protection During Adverse Air Related Leave.--
(1) In general.--Any eligible employee who uses leave under
subsection (a) for the intended purpose of such leave shall be
entitled, on return from using such leave--
(A) to be restored by the employer to the position
of employment held by the employee when the use of such
leave commenced; or
(B) to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms
and conditions of employment.
(2) Loss of benefits.--The use of such leave shall not
result in the loss of any employment benefit accrued prior to
the date on which the use of leave under subsection (a)
commenced.
(3) Limitations.--Nothing in this section shall be
construed to entitle any restored employee to--
(A) the accrual of any seniority or employment
benefits during any period during which such restored
employee uses leave under subsection (a); or
(B) any right, benefit, or position of employment
other than any right, benefit, or position to which the
employee would have been entitled had the employee not
used such leave.
(4) Construction.--Nothing in this section shall be
construed to prohibit an employer from requiring an employee to
report periodically to the employer on the status and intention
of the employee to return to work.
(d) Certification.--
(1) In general.--An employer may require that a request for
leave under subsection (a) be supported by a certification
issued by the health care provider of the eligible employee.
The employee shall provide, in a timely manner, a copy of such
certification to the employer.
(2) Sufficient certification.--Certification provided under
paragraph (1) shall be sufficient if it states--
(A) the appropriate medical facts within the
knowledge of the health care provider regarding the
condition; and
(B) a statement that the health of the employee
would be endangered by exposure to unsafe air.
(3) Subsequent recertification.--The employer may require
that the eligible employee obtain subsequent recertifications
on a reasonable basis.
SEC. 6. DEFINITIONS.
In this Act:
(1) Adverse air.--The term ``adverse air'' means air with
an AQI of at least 151 for PM2.5.
(2) AQI.--The term ``AQI'' means the measure of the
concentration of ozone, particulate matter, carbon monoxide,
sulfur dioxide, and nitrogen dioxide in the air described under
Appendix G to part 58 of title 40, Code of Federal Regulations.
(3) Covered employee.--
(A) In general.--The term ``covered employee''
means an employee of a covered employer who works at a
covered workplace, except as provided in subparagraph
(B).
(B) Exclusion.--The term ``covered employee'' does
not include an employee who works in emergency
operations that are directly involved in the protection
of life or property, or the restoration of essential
services and critical infrastructure.
(4) Covered employer.--The term ``covered employer'' means
any employer that employs an employee at a covered workplace.
(5) Covered workplace.--
(A) In general.--The term ``covered workplace''
means a workplace at which employees are, or may
reasonably be expected to be, exposed to adverse air.
(B) Exclusions.--The following shall not be
considered a covered workplace:
(i) An enclosed building or structure in
which the air is filtered by a mechanical
ventilation system such that an employee is not
exposed to adverse air, if the employer ensures
that windows, doors, bays, and other openings
are kept closed, except when it is necessary to
open doors to enter or exit.
(ii) An enclosed vehicle in which the air
is filtered by a cabin air filter such that an
individual inside such vehicle is not exposed
to adverse air, if the employer ensures that
windows, doors, and other openings are kept
closed, except when it is necessary to open
doors to enter or exit the vehicle.
(iii) A workplace that exposes individuals
to adverse air for a period not to exceed 1
hour during a shift.
(6) Employer.--The term ``employer'' has the meaning given
such term in section 3 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 652).
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