As Summer Temperatures Soar, Employers Face Stiff Penalties For Not Providing New Heat Recovery Periods

With the temperatures soaring this summer, here's a reminder about a new law which went into effect this January regarding so-called "heat recovery periods."

Currently, employers face a one-hour of pay penalty for non-compliant meal or rest breaks.  The penalty compensation law was expanded, effective January 1, 2014, to now include the failure to provide heat "recovery" breaks.  The new statute defines "recovery period" as a "cooldown period afforded an employee to prevent heat illness."  We anticipate a new wave of class action lawsuits in industries that employ outdoor workers. 

What This Change Means For You

The new law extends the one-hour premium pay penalty to any employer who fails to provide an employee with a "recovery period" in accordance with state law. The law requires compliance with any applicable statute or regulation, standard, or order of the Industrial Welfare Commission ("IWC"), the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health ("Cal/OSHA"). 

The Cal/OSHA regulations regarding Heat Illness Prevention (8 C.C.R § 3395(a)(2)) are the most directly implicated by this change due to their broad scope and specific requirements.  The regulations apply to "all outdoor places of employment." Cal/OSHA has defined "outdoor places of employment" in a colloquial sense as those that are not indoor - meaning a place that is not enclosed by a roof and side structures.    

Cal/OSHA regulations require strict compliance with rules regarding the availability of shade, water, and employee training. In general, the regulations state that all employees "shall 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."  Importantly, the regulations make clear that the employee can determine whenever they need a "recovery period" and the employer cannot penalize them for doing so.

Additionally, the regulations do not set a limit as to how many such "cool-down" periods each employee may request.  The purpose of the cool-down rest in the shade is to reduce the heat stress on employees and decrease the risk of heat-related illnesses. Per the regulations, shade must be available and ready to use at all times.  However, shade is required to be set up once the outside temperature reaches 85 degrees.   

The following industries are required to comply with additional "high-heat" procedures:

• Agriculture
• Construction
• Landscaping
• Oil and gas extraction
• Transportation or delivery of agricultural products, construction materials or other heavy materials (except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading).

The additional "high-heat" procedures discussed in the regulations apply to these industries when the temperature equals or exceeds 95 degrees.

Recovery Period Breaks Present Unique Challenges

The rules apply to any employee in California who works outside, even if that is for part of the day. The requirement to provide heat recovery breaks presents unique compliance challenges for employers.  There is no set formula for when these recovery periods must be provided.  The regulations broadly require that the recovery periods must be provided anytime throughout the day when the employees feel "the need to do so to protect themselves" from heat-related illness. Additionally, there is no guidance in the regulations as to when an employer might properly deem employee requests as excessive. 

What Employers Should Do

All California employers are required to have a written Cal/OSHA  compliant "Injury and Illness Prevention Program" or "IIPP" in Cal/OSHA lingo. Employers with outdoor employees also must have a written Cal/OSHA Heat Illness Prevention plan. These documents and the company's Employee Handbooks should be reviewed to make sure they are in compliance with the Cal/OSHA regulations.  Employers should ensure their written policies permit and encourage employees to request recovery period breaks, and that these breaks are provided when requested.  Because challenges to the company practices often come months or even years after the fact, we recommend that companies create a system to document the fact that these breaks are taken, and an employee written acknowledgement that affected employees were provided the requisite breaks in accordance with the law. Employers should also review the Cal/OSHA provisions on the required availability of drinking water, employee training, and supervisor training regarding heat-related illnesses.  

Due to the expected increase in class actions for missed recovery breaks, employers should be diligent with their compliance efforts in providing for and documenting recovery breaks. 

If you have any questions about the matters discussed in this issue of Compliance Matters, you may contact any member of the Firm. We are reachable at 818-508-3700 or on the web at www.brgslaw.com.

Richard Rosenberg & Eric Mueller