In recent years, Cal-OSHA has taken an aggressive stance against “heat illness” that can affect employees’ wellbeing. Employers who fail to provide adequate drinking water, shade, training, and/or “cool-down” periods to employees working in high heat conditions may be cited by Cal-OSHA and subjected to financial penalties. On January 1, 2014, the California Legislature amended Labor Code section 226.7 to increase penalties for an employer’s failure to provide “Cool Down Recovery Periods” to prevent heat exhaustion or stroke. This amendment likely will bolster Cal-OSHA’s enforcement of its heat illness prevention regulations. Employers therefore should be aware of when heat illness prevention laws apply and what they are required to do.

Coverage of Heat Illness Prevention Regulations

California Code of Regulations, Title 8, section 3395 applies to all employers with outdoor places of employment. Cal-OSHA interprets “outdoor places of employment” to include any open area, including fields, forests, parks, yards, roads, construction sites, and outdoor areas adjacent to buildings, like loading docks. Temporary structures may also be considered outdoor places of employment, unless the structure decreases the risk of heat illness. Cal-OSHA has also taken the position that the regulations apply to employees spending “any significant” amount of time working outside.

Heat Illness Prevention Programs

Employers with outdoor places of employment must develop and implement procedures to comply with section 3395 of the regulations. They must address the availability of water and shade, weather monitoring, employee and supervisor training, responding to symptoms of heat illness, and providing emergency medical services. The written procedures must be available to employees for review and to Cal-OSHA on request. Section 3395 requires employers to provide heat illness training to employees and supervisors that cover environmental and personal risk factors for heat illness, the employer’s heat illness prevention procedures, the importance of drinking water, and the common signs and symptoms of heat illness, among others.

Employers must provide employees with potable, cool drinking water at all times and at no cost. Water must also be located in areas readily accessible to the employee. Employees who move from one area of a jobsite to another must have water available in all outdoor areas where they work.

When the temperature exceeds 85 degrees, section 3395 requires employers to maintain one or more areas with shade while employees are on the job. Employees must be allowed to remain in the shade for a minimum of five minutes whenever the employee feels the need to do so. The shaded area must be open to the air, such as an awning, or have ventilation or cooling. The area must also be large enough to accommodate 25 percent of the employees on a shift and allow them to sit comfortably and fully in the shade. If the temperature is below 85 degrees, employers are required to provide prompt access to shade on an employee’s request.

High Heat Protocols

Industries including agriculture, construction, landscaping, oil and gas extraction, as well as industries involved in transporting agricultural products, construction materials, or other heavy materials must adopt additional protocols when the temperature reaches 95 degrees. These protocols include ensuring that employees can effectively communicate with a supervisor when necessary, observing employees for alertness and signs or symptoms of heat illness, reminding employees throughout the work shift to drink plenty of water, and closely supervising new employees for the first 14 days of employment to ensure employees are acclimatized to the heat. Training is key, so supervisors know to comply with the above requirements.

Labor Code Section 226.7

California Labor Code section 226.7 already required 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 rest break. On January 1, 2014, the Legislature amended section 226.7 to obligate employers to pay employees one additional hour of pay for each workday that a recovery period is not provided. Section 226.7 also states that “an employer shall not require an employee to work during a meal or rest or recovery period . . . .” As such, employers cannot allow employees to work during a cool-down period even where it would be feasible for employees to continue working. The statute is an expansion of the regulation discussed above (section 3395), in that the regulation does not prohibit employees from working during cool down periods.
Recently, on June 28, 2014, the Legislature further amended section 226.7 to require employers to count all recovery or cool down periods as hours worked. Therefore, employers may not deduct from an employee’s wages the time taken by an employee to cool down.

What Employers Should Do

Employers should develop and review their Heat Illness Prevention Plans, and notify employees of the company’s policy requiring work-free recovery periods. Employers should also conduct comprehensive training to ensure supervisors understand their obligations, and that employees understand the risks and symptoms of heat illness. Employers should further develop cool down recovery period plans and instruct employees to take cool down periods when needed. Plans should also state that employees are relieved of all work during the five-minute cool down period. Employers should train supervisors to allow employees to take cool down periods and document when employees do so.