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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6221 Introduced in House (IH)]

<DOC>

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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