As most employers well know, the California Labor Code currently provides that an employer may not require an employee to work during a meal or rest period that is mandated by state law or an order of the Industrial Welfare Commission. Following the passage of S.B. 435, effective on January 1, 2014, the scope of California’s Labor Code section 226.7 will be expanded to prohibit an employer from requiring an employee to work during a meal, rest, or recovery period, which is mandated by state law, or an applicable regulation, standard, or order of the Industrial Welfare Commission, Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health. “Recovery period” is defined as a “cool down period afforded an employee to prevent heat illness.”
While Cal-OSHA regulations have been in place for several years mandating employers in California to protect outdoor employees from the hazards of heat illness, the sole remedy under the current law for a violation is a citation issued by the Department of Occupational Safety and Health. Lawmakers felt that the current system of issuing citations for Cal-OSHA violations was not adequately enforcing the heat illness prevention regulations, and so the legislature included a penalty for such violations. Under the newly revised Labor Code section 226.7, an employer who fails to provide the mandated recovery period will be required to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that a recovery period was not provided. Thus, the Division of Labor Standards Enforcement and workers themselves will now be able to bring an action if the employer fails to provide a work-free recovery period.
The current regulations related to heat illness prevention apply to all employers with workers in outdoor spaces. The regulations provide that all outdoor workers shall have access to potable drinking water and “be allowed and encouraged to take a cool-down rest in the shade for a period of no less than five minutes at a time when they feel the need to do so to protect themselves from overheating. Such access to shade shall be permitted at all times.” (Cal. Code of Regulations, Title 8, § 3395(c) & (d).) Shade is required when the temperature exceeds 85 degrees Fahrenheit. The shaded area must be either open to the air or provided with ventilation or cooling. And the amount of shade present shall be “at least enough to accommodate 25% of the employees on the shift at any time, so that they can sit in a normal posture fully in the shade without having to be in physical contact with each other.” (Cal. Code Regulations, Title 8, § 3395(d).) When the temperature does not exceed 85 degrees Fahrenheit, the employer must either provide the same shade as required when the temperatures exceed 85 degrees Fahrenheit, or provide timely access to shade upon an employee’s request. “Shade” is defined in the regulation as the “blockage of direct sunlight” and is not considered adequate “when heat in the area of shade defeats the purpose of shade, which is to allow the body to cool. For example, a car sitting in the sun does not provide acceptable shade to a person inside it, unless the car is running with air conditioning.” (Cal. Code Regulations, Title 8, § 3395(b).)
For those employers in the agriculture, construction, landscaping, and oil and gas extraction industries, as well as those involved in the transportation or delivery of agricultural products, construction materials, or other heavy materials, there are additional “high heat” procedures that those employers must comply with when temperatures exceed 95 degrees Fahrenheit. These procedures include ensuring that effective communication is maintained so that employees at the work site can contact a supervisor when necessary, observing employees for alertness and any signs or symptoms of heat illness, and reminding employees throughout the work shift to drink plenty of water. (Cal. Code Regulations, Title 8, § 3395(e).)
Employers with employees who work outdoors should review their heat illness prevention programs to ensure that they comply with the Cal-OSHA regulations. These programs, which are required by Cal-OSHA to be in writing, should be reviewed to make sure they provide procedures for employees to request recovery periods and to ensure adequate shade and recovery periods are provided when appropriate. It is expected that this will be a new area of litigation as there are no precise terms for when recovery periods must be provided. Rather, the regulations as currently worded permit an employee to subjectively determine when a recovery period is needed, and there is no indication in the regulations as to when an employer could deny additional recovery periods as excessive. Accordingly, it is recommended that employers become familiar with these regulations, make sure their heat illness prevention programs comply with the regulations, and document the provision of recovery breaks to their employees.