The California Legislature yet again amended California Labor Code Section 226.7—this time to clarify that employers must pay employees during "cool-down" periods required by California workplace safety and health regulations.
Action recommended for companies with "outdoor places of employment"
With the recent amendments to Section 226.7 and California's intense enforcement of its heat illness prevention regulations, California employers with outdoor work areas should:
reassess their written heat illness risks and prevention programs (including any high-heat procedures, if necessary);
provide instruction and/or refresher training to employees and supervisors as part of those programs;
make available the appropriate shade (or, if permitted, alternative procedures or measures) at or near outdoor work areas;
provide sufficient quantities of potable drinking water to outdoor workers;
ensure that, by the end of the year, recovery periods are counted as time worked; and
document when employees request and/or take a recovery period pursuant to the heat illness prevention regulations.
Failing to implement the proper heat illness prevention program may expose companies not only to enforcement and/or criminal action by the state but also significant civil liability under the current version of Section 226.7.
Rule begins January 1, 2015
On June 28, 2014, Gov. Jerry Brown signed SB 1360, a law that amends Section 226.7 to require employers to count as time worked any "recovery period." Section 226.7 defines "recovery period" as a "cooldown period afforded an employee to prevent heat illness." The changes will take effect on January 1, 2015. Before SB 1360, California law was silent on whether such recovery periods should be counted as paid time.
Regulations require minimum of five minutes in shade
California Code of Regulations, title 8, Section 3395 mandates that all employers with "outdoor places of employment" implement a heat illness prevention program that includes, among other requirements, providing workers "cool-down" periods of at least five minutes in the shade. Specifically, Section 3395 provides that "[e]mployees 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" and that "such access to shade shall be permitted at all times."
Previous law was unclear whether "cool-down" periods be paid time
The regulations do not specify that such "cool-down" periods must be paid. Decisions from the California Occupational Safety and Health Appeals Board ("Appeals Board") have not provided guidance on the issue, which SB 1360 now resolves. Even with the uncertainty before SB 1360, many California employers decided to pay employees during recovery periods, but such breaks are susceptible to abuse. Unlike 10-minute rest breaks, the regulations do not expressly set limits on the number of "cool-down" periods an employee may take in a single day, and they do not set a maximum time limit for each "cool-down" break.
Other changes to Section 226.7 over the last year create civil liability of one hour of pay for each workday that the employer fails to provide a "cool-down" break
SB 1360 marks the second amendment to Section 226.7 in the last nine months. Last year, the California Legislature amended Section 226.7, effective January 1, 2014, to prohibit employers from requiring an employee to work during a recovery period provided by applicable statute, regulation, or standard, or an order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health (the "Division"). Section 226.7 now creates civil liability in the amount of one additional hour of pay to employees for each workday that the employer fails to provide a "cool-down" break. Such standards can create significant exposure for employers that do not fully understand the heat illness prevention regulations.
Heat illness prevention rules applies to all companies with "outdoor places of employment"
One misconception is that the heat illness prevention regulations apply only to certain industries such as agriculture, construction, landscaping, oil and gas extraction, and transportation or delivery of agricultural products, construction materials, or other heavy materials. While companies in these industries must implement special "high-heat" procedures (i.e., additional protocols for when the temperature is at least 95 degrees Fahrenheit), all companies with "outdoor places of employment" must have heat illness prevention programs.
Definition of "outdoor places of employment" is not clear
The regulations, however, do not define "outdoor places of employment." The Appeals Board has ruled that "outdoor" means "in an open air environment," which does not provide much helpful guidance. It is not clear, for example, whether the applicability of heat illness prevention regulations turns on a particular amount of time that the employees spend in open air environments. Rulings by some administrative law judges with the Appeals Board suggest that heat illness regulations could apply to employers with workers who perform their job duties outdoors for at least some portion of their day. For example, in an appeal involving The Coca-Cola Company, one Appeals Board administrative law judge concluded that the company's truck drivers worked outdoors because, even "for a limited time" during their work day, the drivers manually off-loaded and moved product from their trucks to inside the stores. In enforcing the heat illness prevention regulations, the Division has taken the position that outdoor locations next to buildings (for example, loading docks) are outdoor places of employment "if an employee spends a significant amount of time working in them." Thus, these heat illness prevention regulations could apply a variety of other industries (like utilities, energy, telecommunications, logistics, entertainment, and media) with workers who perform at least some of their job duties outdoors.
The Division also has opined that even certain structures—such as sheds, packing sheds, tents, lean-tos, and other structures with one or more open sides—could be outdoor workplaces. The Division has focused on the issue of whether such structures "significantly reduce the net effect of the environmental risk factors that exist immediately outside of the structure." If they do not, the Division has considered such structures as outdoor work areas for the purposes of enforcing the heat illness prevention regulations.
No minimum temperature threshold of "cool-down" periods
Another misconception is that employers need to provide recovery periods only on hot days. While the regulations require shade (or, if permitted by the regulations, alternative cooling procedures or measures) when temperatures exceed 85 degrees Fahrenheit, they also state that employers must provide shade even on cooler days "upon an employee's request." The same regulation also mandates, without any reference to a specific temperature, that employers must allow and encourage workers to take a recovery period generally at the employees' discretion—in other words, "when they feel the need to do so to protect themselves from overheating." Because employers must count recovery periods as time worked, they may not document such "cool-down" breaks on time records.