January 14, 2014
Starting January 1, 2014, employers may be penalized for failing to provide recovery periods to employees suffering from heat illness or attempting to prevent heat illness.
On October 10, 2013, California Governor Jerry Brown signed Senate Bill 435 (“SB 435”) into law. SB 435 amends Labor Code Section 226.7 to include recovery periods and prohibits employers from working employees through a recovery period. Recovery period means “a cooldown period afforded an employee to prevent heat illness.” SB 435 penalizes employers one additional hour of pay (similar to the penalty for missed meal and rest periods) for failing to provide a recovery period.
SB 435 Enhances Penalties for Failure to Comply with Cal/OSHA Heat Illness Prevention Regulations
In 2006, California Division of Occupational Safety and Health (“Cal/OSHA”) published Heat Illness Prevention regulations, found at Title 8 of the California Code of Regulations, applicable to all outdoor places of employment.
The regulations detail what is required for an adequate “cool-down” period:
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. Such access to shade shall be permitted at all times.
The regulations also provide detailed rules regarding the provision of shade:
“Shade” means blockage of direct sunlight. One indicator that blockage is sufficient is when objects do not cast a shadow in the area of blocked sunlight. Shade is not 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. Shade may be provided by any natural or artificial means that does not expose employees to unsafe or unhealthy conditions.
Specific rules regarding access to shade depend on the temperature of the worksite:
When the outdoor temperature in the work area exceeds 85 degrees Fahrenheit, the employer shall have and maintain one or more areas with shade at all times while employees are present that are either open to the air or provided with ventilation or cooling. 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. The shaded area shall be located as close as practicable to the areas where employees are working.
The regulations provide that when the outdoor temperature in the work area does not exceed 85 degrees Fahrenheit, employers shall either provide shade as described in the above paragraph or provide timely access to shade upon an employee’s request.
The requirement to provide shade allows for two exceptions:
(1) Where the employer can demonstrate that it is infeasible or unsafe to have a shade structure, or otherwise to have shade present on a continuous basis, the employer may utilize alternative procedures for providing access to shade if the alternative procedures provide equivalent protection.
(2) Except for employers in the agricultural industry, cooling measures other than shade (e.g., use of misting machines) may be provided in lieu of shade if the employer can demonstrate that these measures are at least as effective as shade in allowing employees to cool.
The Heat Illness Prevention regulations apply to the following industries:
(4) Oil and gas extraction; and
(5) Transportation or delivery of agricultural products, construction materials or other heavy materials (e.g. furniture, lumber, freight, cargo, cabinets, industrial or commercial materials), except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading.
Employers Face Substantial Penalties for Non-Compliance
The penalty for non-compliance for failure to provide a recovery period is same as the penalty for failure to provide meal or rest periods—one hour of pay at the employee’s regular rate of pay for each workday that the recovery period is not provided. As with meal and rest period lawsuits, such penalties can quickly add up when applied to a large workforce. Class-action treatment may be sought where a company’s practices and policies fail to satisfy the minimum standards set by the law. It would not be surprising to see potential claims aggressively pursued against employers in industries such as logistics, warehousing, and janitorial as a result of this new requirement.
Thus, employers must ensure that recovery periods are provided in compliance with Labor Code Section 226.7. Employers should also prepare policies and review their Injury and Illness Prevention Programs (“IIPP”) regarding the provision of recovery periods in anticipation of the January 1, 2014 effective date of SB 435.
Employers Must Continue to Comply with Cal/OSHA Regulations or Risk Citation
Prior to the enactment of SB 435, the sole remedy for violation of the Heat Illness Prevention regulation was a citation by Cal/OSHA. Cal/OSHA citations for Heat Illness Prevention regulation violations remain a possibility. Therefore, employers in the above industries should also review their written procedures for heat illness prevention as well as employee training records. Cal/OSHA encourages such employers to integrate their heat illness prevention procedures into their IIPP.
REMEMBER having the procedure in your IIPP is only partial compliance with the regulation. Cal/OSHA will ask you to provide copies of your training records as well. One easy way to satisfy this requirement is to have a tailgate meeting or safety meeting where the heat illness training is the only topic addressed. Effective communication of the dangers and the regulations will keep the employees healthy and Cal/OSHA happy, which translates into a healthier and safer work environment.