By Geoffrey C. Westbrook and Joshua M. Henderson

Just when one might have thought California employment law couldn’t get any stickier for employers, in January 2014 the California Legislature turned up the heat by expanding meal and rest break penalty provisions. Now there’s a new penalty for failure to provide “cool-down,” or recovery, periods to prevent heat illness.

Before, heat illness prevention laws were enforced only by the limited resources of Cal-OSHA. Now, newly amended Labor Code Section 226.7 authorizes private enforcement through class, individual, and multi-plaintiff actions, as well as by the DLSE. Monetary incentives, in addition to ambiguities on many aspects of the law, will likely trigger increased Cal-OSHA enforcement and new litigation, just as the remedies for meal and rest break violations have produced a heat wave of class action litigation. Talk about a scorcher!

But What is a “Cool-down” Period? California employers with “outdoor places of employment” must implement a heat illness prevention program, including allowing and encouraging employees 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.” During these periods, employees must get continuous access to shade and drinking water.

While these obligations existed for almost a decade under Cal-OSHA’s oversight, private enforcement officially began January 1, 2014 with the amendment to Labor Code Section 226.7. Now, “an employer shall not require an employee to work during a meal or rest or recovery period” required by law. As a penalty, employers must pay non-exempt employees one additional hour of pay for each workday in which a meal or rest or recovery period is not provided. Penalties are cumulative, meaning it is thus now possible under Section 226.7 for an employer to incur three penalties in a given workday for each affected employee.

So, What are “Outdoor Places of Employment?” This term, not defined in the regulations, may seem self-evident. “Outdoor” really means “out of doors” in an open air environment. But how much time must one spend out of doors to make it a “place” of employment? Reasonable minds could differ here: is 50% of a workday spent outdoors sufficient to trigger the law, or will a mere 25% suffice?

Recovery Periods: A “Hotbed” for Litigation? There are no published decisions yet on cool-down periods, and the law is ripe with ambiguities that only litigation will resolve. These uncertainties, and the prospect of penalties that will be very large when considered on a cumulative basis, may prompt private litigants to initiate civil actions against unsuspecting employers in industries with some outdoor work that haven’t traditionally been the focus of enforcement initiatives. These industries may include engineering, warehousing, carwash, outdoor recreation, automotive sales, security, country clubs, valets, summer camps, and janitorial businesses.

The following are areas where employers may face “cooling down” challenges:

  • Proper Access to Sufficient Amounts of Shade. The regulations provide detailed rules on the amount of shade provided to employees during a recovery period, the location of shade to work areas, and access to shade in days even when outdoor temperatures do not exceed 85 degrees. Failure to meet these requirements may lead to a claim that the employer failed to provide recovery periods within the meaning and intent of Cal-OSHA regulations.
  • Frequency and Length of Recovery Periods. Employees must be permitted to take a cool-down rest “when [employees] feel the need to do so to protect themselves from overheating.” Unlike meal and rest periods, the law does not identify the minimum number of recovery periods an employee must receive in a workday or if recovery periods can be scheduled to avoid business interruption. And, while recovery periods can be “no less than five minutes,” the regulation does not provide guidance on the maximum duration of a recovery period: must employers, for instance, provide a paid 30-minute work-free recovery period to all employees upon request?
  • Failure to “Encourage” Recovery Periods. Heat illness prevention regulations go beyond meal and rest break laws and require employers to “encourage” employees to take recovery periods. Other than satisfying the law’s training and written policy and procedure requirements, it is unclear what efforts employers must take to encourage recovery periods. So a failure to “encourage” recovery periods might also lead to a Section 226.7 claim.

Workplace Solutions. As a threshold issue, California employers in industries not expressly subject to heat illness prevention laws should carefully consider whether their operations may be construed as an “outdoor place of employment.” Employers with “outdoor places of employment” should review their policies, record-keeping practices, and training to ensure compliance and proper integration with recovery period and other heat illness prevention requirements. Such precautions will help keep employers burn-free for the remaining warm months of the year.