Anti-discrimination provisions of the permanent wildfire smoke rules
Last updated May, 2024
All employers covered by the Washington Industrial Safety and Health Act (WISHA), Chapter 49.17 RCW, must provide safe and healthy working conditions, as far as reasonably possible, for workers in this state.
By law, no one including employers may take action against workers for exercising their rights under the Washington Industrial Safety and Health Act. This means employers may not fire, discriminate against, or retaliate against workers solely because they take part in protected activities such as those described in the L&I DOSH publication Safety and Health Discrimination in the Workplace (F417-244-000).
In addition to these rights under WISHA, workers covered by the permanent wildfire smoke rules (Chapter 296-820 WAC and WAC 296-307-098) have the right not to be retaliated against for reporting any symptoms that may potentially be related to wildfire smoke exposure, for seeking medical attention, or for following medical advice they have been given.
Do workers have to experience multiple symptoms to be protected against retaliation?
No. Reporting symptoms, seeking medical attention, or following medical advice workers have been given is activity protected against retaliation whether affected workers experience one symptom or multiple symptoms.
Do the symptoms have to be considered “serious” in order to have anti-retaliation protection?
No. Reporting symptoms, seeking medical attention, or following medical advice workers have been given are activities protected against retaliation regardless of the severity of the symptoms.
Do workers need to prove their symptoms are work-related in order to have anti-retaliation protections under the wildfire smoke rules?
No. The only requirement is that the symptom(s) “may potentially be related to wildfire smoke exposure.” Workers are protected by the anti-retaliation provisions of the wildfire smoke rules for such “potentially related” symptoms, even if the symptoms are later determined not to be work-related.
Do any other agencies enforce anti-discrimination laws in workplaces?
Yes. The Washington State Human Rights Commission (https://hum.wa.gov) and the United States Equal Employment Opportunity Commission (https://www.eeoc.gov/) also enforce anti-discrimination laws that are applicable to the workplace. Contact those agencies for more information about their jurisdiction and investigative processes, including for how to file a complaint.
Are there other anti-discrimination protections workers may have?
Yes. Suppression of Industrial Insurance claims is illegal in Washington State. For more information on claimant rights and how to file a complaint, see https://lni.wa.gov/fraud/claim-suppression.
Do workers need to seek a reasonable accommodation from employers under the Americans with Disabilities Act (ADA) in order to be protected against retaliation?
No. The anti-retaliation rights under the wildfire smoke rules are in addition to rights workers have under other laws, such as the Americans with Disabilities Act.
Do workers have anti-retaliation protections if the employer is a small business?
Yes. Workers employed by small businesses have the same anti-retaliation protections under the wildfire smoke rules as workers employed by all other businesses covered by the rules.
If workers believe they have been retaliated against for reporting symptoms, seeking medical attention or following medical advice they have been given after being exposed to wildfire smoke while working outdoors, how long do they have to file a complaint?
Workers must file a retaliation complaint with DOSH within 90 days from the time a disciplinary or retaliatory action occurred.
May workers also file a retaliation complaint with the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA)?
Yes, but workers must do this within 30 days from the time a disciplinary or retaliatory action occurred. Although OSHA will not conduct a parallel investigation, filing an OSHA complaint allows workers to request a federal review of their retaliation complaints if they are dissatisfied with the state’s final determination.
If workers believe they have been retaliated against, how do they file a complaint?
Workers can file a retaliation in the workplace complaint by phone, by submitting a complaint form, or by contacting the nearest L&I office.
These options are further described at https://lni.wa.gov/WorkplaceDiscrimination