I 

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. OCASIOCORTEZ, 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Smoke Mitigation and 

5 Occupational Key Enhancements Act’’ or ‘‘SMOKE Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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1 (1) Climate change is making wildland fires 

2 more frequent and longer lasting. 

3 (2) Wildfire smoke is a mixture of air pollut4 ants, of which the principal public health threat is 

5 particulate matter. 

6 (3) Wildfire smoke has been directly linked to 

7 poor air quality that can lead to significant health 

8 effects and costs to society (such as emergency de9 partment visits, hospital admissions, and deaths, 

10 often due to respiratory ailments). 

11 (4) In addition to climate change, other fac12 tors—land use, large-scale insect infestation, fuel 

13 availability (including invasive species such as highly 

14 flammable cheatgrass), and management practices, 

15 including fire suppression—play an important role 

16 in wildfire frequency and intensity. 

17 (5) In summer 2023, smoke from wildfires in 

18 Canada drifted into the United States, leading to ex19 tremely poor air quality across the eastern United 

20 States. Since then, States across the country have 

21 issued poor air quality alerts, with New York City 

22 having reported the worst air quality in the world on 

23 June 7, 2023. Due to these fires, about 128 million 

24 Americans in 18 States were under air quality 

25 alerts. 


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1 (6) While officials have warned Americans to be 

2 mindful of poor air quality conditions, including to 

3 limit time spent outside, worker protections are un4 clear in these circumstances. 

5 SEC. 3. OSHA STANDARDS. 

6 (a) PROPOSED STANDARD.—Not later than 2 years 

7 after the date of enactment of this Act, the Secretary of 

8 Labor shall, pursuant to section 6(b) of the Occupational 

9 Safety and Health Act of 1970 (29 U.S.C. 655(b)), in con10 sultation with the Administrator of the Environmental 

11 Protection Agency and the Secretary of Health and 

12 Human Services (acting through the Director of the Na13 tional Institute on Occupational Safety and Health), and 

14 in accordance with the best available evidence, promulgate 

15 a proposed standard on prevention of workplace injury 

16 from exposure to adverse air. 

17 (b) FINAL STANDARD.—Not later than 42 months 

18 after the date of enactment of this Act, the Secretary shall 

19 promulgate a final standard on prevention of workplace 

20 injury from exposure to adverse air that shall— 

21 (1) presume as feasible any requirement that— 

22 (A) is substantially equivalent to a require23 ment adopted by a State plan that has been ap24 proved by the Secretary under section 18 of the 


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1 Occupational Safety and Health Act of 1970 

2 (29 U.S.C. 667); and 

3 (B) has been in effect for at least 1 year; 

4 (2) at a minimum, include the requirements de5 scribed in section 4; and 

6 (3) be effective and enforceable in the same 

7 manner and to the same extent as any standard pro8 mulgated under section 6(b) of the Occupational 

9 Safety and Health Act of 1970 (29 U.S.C. 655(b)). 

10 (c) INTERIM FINAL STANDARD.— 

11 (1) IN GENERAL.—If the proposed standard de12 scribed in subsection (a) is not promulgated, not 

13 later than 2 years after the date of enactment of 

14 this Act, the Secretary of Labor shall promulgate an 

15 interim final standard on prevention of workplace in16 jury from exposure to adverse air not later than 2 

17 years and 60 days after such date of enactment— 

18 (A) to require covered employers to mon19 itor the AQI for PM2.5 and, if adverse air is 

20 present, communicate the AQI for PM2.5 to the 

21 covered employees of such covered employers; 

22 and 

23 (B) that shall, at a minimum, include a re24 quirement to protect employees from discrimiVerDate Sep 11 2014 18:27 Nov 11, 2023 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H6221.IH H6221

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1 nation or retaliation for exercising the rights of 

2 the employees under the interim final standard. 

3 (2) APPLICABILITY OF OTHER STATUTORY RE4 QUIREMENTS.—The following shall not apply to the 

5 promulgation of the interim final standard under 

6 this subsection: 

7 (A) The requirements applicable to occupa8 tional safety and health standards under section 

9 6(b) of the Occupational Safety and Health Act 

10 of 1970 (29 U.S.C. 655(b)). 

11 (B) The requirements of section 553(c) of 

12 chapter 5 and chapter 6 of title 5, United 

13 States Code. 

14 (C) The requirements of the National En15 vironmental Policy Act of 1969 (42 U.S.C. 

16 4321 et seq.). 

17 (3) EFFECTIVE DATE OF INTERIM STAND18 ARD.—The interim final standard shall— 

19 (A) take effect on a date that is not later 

20 than 30 days after the promulgation of such 

21 standard; 

22 (B) have the same legal effect and be en23 forceable in the same manner and to the same 

24 extent as any standard promulgated under secVerDate Sep 11 2014 18:27 Nov 11, 2023 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6221.IH H6221

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1 tion 6(b) of the Occupational Safety and Health 

2 Act of 1970 (29 U.S.C. 655(b)); and 

3 (C) be in effect until the final standard de4 scribed in subsection (b) becomes effective and 

5 enforceable. 

6 SEC. 4. REQUIREMENTS FOR FINAL STANDARDS. 

7 (a) IN GENERAL.—The final standard promulgated 

8 under section 3(b) shall include the following require9 ments: 

10 (1) CONTROLS RELATED TO MONITORING.— 

11 Each covered employer shall, at the start of each 

12 work day or shift, and every 2 hours thereafter, de13 termine whether adverse air is present at each cov14 ered workplace for each such work day or shift by 

15 monitoring or obtaining the AQI for PM2.5 fore16 casts from— 

17 (A) the Environmental Protection Agency; 

18 (B) the Interagency Wildland Fire Air 

19 Quality Response Program; or 

20 (C) the United States Forest Service. 

21 (2) EMPLOYER COMMUNICATION OF POTENTIAL

22 ADVERSE AIR EXPOSURES.—Each covered employer 

23 shall establish and implement a system to commu24 nicate the presence of adverse air in a language and 

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1 ees, which shall include procedures that inform such 

2 employees of the following: 

3 (A) Each time during the workday when 

4 adverse air affects the workplace of such em5 ployees. 

6 (B) The protective controls described in 

7 paragraph (3) available to employees to reduce 

8 exposure to adverse air. 

9 (C) The potential health impacts of breath10 ing adverse air without proper protection. 

11 (D) The policy of the employer that em12 ployees are encouraged to report to the em13 ployer, without fear of discrimination or retalia14 tion— 

15 (i) the presence of adverse air in the 

16 workplace; and 

17 (ii) adverse symptoms, including asth18 ma attacks, difficulty breathing, or chest 

19 pain, that the employee is at risk of experi20 encing if exposed to adverse air. 

21 (3) PROTECTIVE CONTROLS.—Each covered 

22 employer shall provide the following at each covered 

23 workplace of the employer: 

24 (A) ENGINEERING CONTROLS.— 


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1 (i) IN GENERAL.—Reduction of em2 ployee exposure to adverse air by engineer3 ing controls whenever feasible, such as by 

4 providing enclosed buildings, structures, or 

5 vehicles where the air is filtered to prevent 

6 exposure to adverse air within such build7 ings, structures, or vehicles. 

8 (ii) INSUFFICIENT ENGINEERING CON9 TROLS.—If engineering controls are insuf10 ficient to prevent exposure to adverse air, 

11 reduction of employee exposure to such air 

12 to the extent feasible. 

13 (B) ADMINISTRATIVE CONTROLS.—When14 ever engineering controls are not feasible or do 

15 not reduce employee exposures to adverse air, 

16 implementation, if feasible, of administrative 

17 controls, such as relocating work to a location 

18 where adverse air is not present, allowing re19 mote work, changing work schedules, reducing 

20 work intensity, or providing additional rest peri21 ods. 

22 (C) PERSONAL PROTECTIVE EQUIP23 MENT.— 

24 (i) IN GENERAL.—Whenever adverse 

25 air is present, the provision of a sufficient 


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1 number of respirators that meet the re2 quirements of clause (ii) to all covered em3 ployees for voluntary use and encourage4 ment to employees to use such respirators. 

5 (ii) RESPIRATORS PROVIDED.—A res6 pirator provided under clause (i) shall be— 

7 (I) a device approved by the Na8 tional Institute for Occupational Safe9 ty and Health that effectively protects 

10 the wearers from inhalation of PM2.5, 

11 such as N95 filtering facepiece res12 pirators; 

13 (II) cleaned or replaced as appro14 priate; and 

15 (III) stored and maintained in 

16 such a way so that such respirators do 

17 not present a health hazard to users. 

18 SEC. 5. ADVERSE AIR RELATED LEAVE. 

19 (a) IN GENERAL.—In the case of an employee whose 

20 health would be jeopardized by exposure to adverse air, 

21 such employee shall be entitled to a total of 12 weeks of 

22 unpaid leave per 12-month period for the purposes of 

23 avoiding such exposure at a covered workplace where the 

24 employee is employed. 


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1 (b) SUBSTITUTION OF PAID LEAVE.—An employee 

2 may elect to substitute any of the accrued paid vacation 

3 leave, personal leave, or family leave of the employee for 

4 leave provided under subsection (a) for any part of the 

5 12-week period of such leave under such subsection. 

6 (c) EMPLOYMENT PROTECTION DURING ADVERSE

7 AIR RELATED LEAVE.— 

8 (1) IN GENERAL.—Any eligible employee who 

9 uses leave under subsection (a) for the intended pur10 pose of such leave shall be entitled, on return from 

11 using such leave— 

12 (A) to be restored by the employer to the 

13 position of employment held by the employee 

14 when the use of such leave commenced; or 

15 (B) to be restored to an equivalent position 

16 with equivalent employment benefits, pay, and 

17 other terms and conditions of employment. 

18 (2) LOSS OF BENEFITS.—The use of such leave 

19 shall not result in the loss of any employment ben20 efit accrued prior to the date on which the use of 

21 leave under subsection (a) commenced. 

22 (3) LIMITATIONS.—Nothing in this section shall 

23 be construed to entitle any restored employee to— 

24 (A) the accrual of any seniority or employ25 ment benefits during any period during which 


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1 such restored employee uses leave under sub2 section (a); or 

3 (B) any right, benefit, or position of em4 ployment other than any right, benefit, or posi5 tion to which the employee would have been en6 titled had the employee not used such leave. 

7 (4) CONSTRUCTION.—Nothing in this section 

8 shall be construed to prohibit an employer from re9 quiring an employee to report periodically to the em10 ployer on the status and intention of the employee 

11 to return to work. 

12 (d) CERTIFICATION.— 

13 (1) IN GENERAL.—An employer may require 

14 that a request for leave under subsection (a) be sup15 ported by a certification issued by the health care 

16 provider of the eligible employee. The employee shall 

17 provide, in a timely manner, a copy of such certifi18 cation to the employer. 

19 (2) SUFFICIENT CERTIFICATION.—Certification 

20 provided under paragraph (1) shall be sufficient if it 

21 states— 

22 (A) the appropriate medical facts within 

23 the knowledge of the health care provider re24 garding the condition; and 


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1 (B) a statement that the health of the em2 ployee would be endangered by exposure to un3 safe air. 

4 (3) SUBSEQUENT RECERTIFICATION.—The em5 ployer may require that the eligible employee obtain 

6 subsequent recertifications on a reasonable basis. 

7 SEC. 6. DEFINITIONS. 

8 In this Act: 

9 (1) ADVERSE AIR.—The term ‘‘adverse air’’ 

10 means air with an AQI of at least 151 for PM2.5. 

11 (2) AQI.—The term ‘‘AQI’’ means the measure 

12 of the concentration of ozone, particulate matter, 

13 carbon monoxide, sulfur dioxide, and nitrogen diox14 ide in the air described under Appendix G to part 

15 58 of title 40, Code of Federal Regulations. 

16 (3) COVERED EMPLOYEE.— 

17 (A) IN GENERAL.—The term ‘‘covered em18 ployee’’ means an employee of a covered em19 ployer who works at a covered workplace, ex20 cept as provided in subparagraph (B). 

21 (B) EXCLUSION.—The term ‘‘covered em22 ployee’’ does not include an employee who 

23 works in emergency operations that are directly 

24 involved in the protection of life or property, or 


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1 the restoration of essential services and critical 

2 infrastructure. 

3 (4) COVERED EMPLOYER.—The term ‘‘covered 

4 employer’’ means any employer that employs an em5 ployee at a covered workplace. 

6 (5) COVERED WORKPLACE.— 

7 (A) IN GENERAL.—The term ‘‘covered 

8 workplace’’ means a workplace at which em9 ployees are, or may reasonably be expected to 

10 be, exposed to adverse air. 

11 (B) EXCLUSIONS.—The following shall not 

12 be considered a covered workplace: 

13 (i) An enclosed building or structure 

14 in which the air is filtered by a mechanical 

15 ventilation system such that an employee is 

16 not exposed to adverse air, if the employer 

17 ensures that windows, doors, bays, and 

18 other openings are kept closed, except 

19 when it is necessary to open doors to enter 

20 or exit. 

21 (ii) An enclosed vehicle in which the 

22 air is filtered by a cabin air filter such that 

23 an individual inside such vehicle is not ex24 posed to adverse air, if the employer en25 sures that windows, doors, and other openVerDate Sep 11 2014 18:27 Nov 11, 2023 Jkt 049200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H6221.IH H6221

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1 ings are kept closed, except when it is nec2 essary to open doors to enter or exit the 

3 vehicle. 

4 (iii) A workplace that exposes individ5 uals to adverse air for a period not to ex6 ceed 1 hour during a shift. 

7 (6) EMPLOYER.—The term ‘‘employer’’ has the 

8 meaning given such term in section 3 of the Occupa9 tional Safety and Health Act of 1970 (29 U.S.C. 

10 652). 

Æ 


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