Orange County Branch Newsletter

June 2015

Law and CE News

Beat the Heat. It’s the Law.


Summer is near and with it, the promise of long and HOT days. While it’s common knowledge to many employers that the California Labor Code mandates breaks to allow for meal and rest periods, since 2013, employers are also required to provide employees with breaks to beat the heat.

In 2013 and 2014, the California Legislature passed Senate Bill 435 and Senate Bill 1360, which amended Labor Code section 226.7. Pursuant to the amendment, employers must allow employees to take a “recovery period” when necessary. A recovery period is a “cooldown period afforded to an employee to prevent heat illness.” This cooldown period must be at least 5 minutes, plus the time it takes to access the shade, or as long as it takes for the employee to stop showing signs or symptoms of heat illness. Specifically, a “recovery period” can be taken whenever an employee feels the need for a break in order to protect them from overheating. However, unlike meal periods, employers must pay employees to take recovery periods. Just like the penalties assessed for failure to provide meal and rest periods, an employer may be penalized for failing to provide an employee with recovery periods. The penalty is one hour of pay for each workday where a recovery period was not provided. This law applies to all outdoor places of employment. There is a misconception among many employers that an outdoor place of employment is limited to only construction zones or farmland. However, in California “any” exposure to the outdoors may be enough to trigger the need for compliance.

In addition to Labor Code section 226.7, employers must comply with the Cal/OSHA regulations pertaining to heat prevention. It is important for employers to familiarize themselves with the Cal/OSHA regulations in order to ensure compliance and for the purpose of limiting potential liability. The Cal/OSHA regulations have been recently amended with changes going into effect on May 1, 2015, making now the perfect time to learn about or become reacquainted with the regulations discussed below.

Cal/OSHA STEPS TO PREVENT HEAT ILLNESS

California employers are required to provide the following four resources to prevent heat illness: (1) Training, (2) Water, (3) Shade, and (4) Planning.

                Training

Employers must train all employees, both supervisory and nonsupervisory, on the policies and procedures relating to heat illness prevention regulations. Although the training must cover several topics, training pertaining to the employer’s responsibility to provide water, shade, and cooldown rest periods must be discussed.

                Water

California requires employers to provide employees with adequate drinking water. In order to ensure compliance, employers must ensure that employees have access to one quart of water per hour for the entire shift. According to the 2015 changes, this water must also be fresh, pure, suitably cool (cooler than ambient temperatures), and must be provided to employees for free. The changes also require the water to be located as close as practicable to the areas where employees are working.

                Shade

The new changes require shade when the temperature exceeds 80 Fahrenheit. “Shade” is defined as blockage of direct sunlight, which can be provided by natural or artificial means that does not expose employees to unsafe or unhealthy conditions. While it used to be that an employer only had to provide shade accommodation for 25% of its employees, now an employer is required to provide enough shade to accommodate the number of employees taking a rest period at any given time. This may require employers to rotate or stagger employee schedules in order to avoid all employees needing to take a recovery period at the same time. Moreover, the law requires employers to ensure that employees are not deterred or discouraged from accessing the shaded area. As such, employers should take extra steps to guarantee that workers are not encountering unpleasant conditions such as cross-traffic blocking access to shade or having a shaded area next to a portable toilet facility.

                Planning

Employers must be sure to establish a Heat Illness Prevention Plan. This plan needs to be in writing and must be in both English and the language understood by the majority of employees. Additionally, this plan needs to be available to employees at the worksite.

As an employer, it is important to balance the needs of the company with employee safety. However, in California, the best rule of thumb remains safety first.

Please contact us to discuss further.

Nicole Davis Tinkham, Esq. | ndavis@ccmslaw.com  

Stefanie C. Desalernos, Esq. | sdesalernos@ccmslaw.com  

Collins Collins Muir + Stewart LLP

Nothing contained in this article should be considered legal advice. Anyone who reads this article should consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.

Sponsors