On January 1, 2014, California employers will be required to pay a premium for failing to provide heat “recovery periods” to employees. This premium pay is similar to the premium pay already required for violations of California’s meal period and rest break laws.
California Labor Code section 226.7 currently requires employers to pay a penalty of one hour of pay for any failure to provide a non-exempt employee with a meal period and an additional hour of pay for any failure to provide a non-exempt employee with a rest break. This law has produced numerous class action lawsuits throughout California.
Senate Bill 435 will amend Labor Code section 226.7 to additionally require employers to pay one hour of pay for any failure to provide a “recovery period,” defined as “a cooldown period afforded an employee to prevent heat illness,” to non-exempt employees. The bill applies this penalty to any violation of the recovery period mandated by applicable statute or applicable regulation, standard or order of the Industrial Welfare Commission (IWC) or California Occupational Safety and Health Administration (Cal/OSHA).
California Industry Safety Order 3395 requires agriculture, construction, landscaping, oil and gas extraction, and transportation employers to provide employees with access to shade either when the outside temperature exceeds 85 degrees Fahrenheit or upon an employee’s request. The shade must be “as close as practicable to the areas where employees are working” and sufficient “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.” The order further explains that employees “shall be allowed and encouraged” to take cool-down breaks in the shade “for a period of no less than five minutes at a time.” Unlike the specified number of meal periods and rest breaks, there is no limit on the frequency of these recovery periods. Rather, the order provides that employees shall be allowed to take cooldown recovery periods “when they feel the need to do so to protect themselves from overheating.”
The Need for Policies on Recovery Periods
As with other wage and hour regulations, SB 435 is likely to result in a minefield of class action litigation. Under Cal/OSHA regulations, employers are already required to develop and implement written procedures for preventing heat illness. Employers should review their written policies to make sure that they are compliant with Cal/OSHA and the recovery period requirements. Such requirements include training all employees and supervisors about heat illness prevention, providing enough water so that each employee can drink at least one quart per hour (and encouraging them to do so), providing access to shade and encouraging employees to take cooldown recovery periods for at least five minutes. A certification should also be created to ensure the recovery periods were provided.