By Jinouth Vasquez Santos

Seyfarth SynopsisMarijuana businesses must properly label their products if they contain chemicals that can cause cancer, birth defects, or other reproductive health problems.  Failure to do so will result in a civil penalty or civil lawsuit.

Entrepreneurial Plaintiff’s attorneys have now set their sites on marijuana businesses.  Since January 1, 2017, Plaintiff’s firms have issued approximately 800 violation notice letters to marijuana businesses alleging that producers of cannabis infused edibles and vape cartridge manufacturers failed to warn consumers about specific fungicides and pesticides associated with their products.

California’s Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, requires cannabis business owners to provide customers with warning of the chemicals contained in their products which can cause cancer, birth defects, and other health problems.  Among the substances “known to the state of California” to cause cancer, birth defects and other health problems are marijuana smoke itself, and the chemicals myclobutanil (also a fungicide), carbaryl, and malathion, commonly-used pesticides.

Failure to comply with the warning requirement can result in a civil penalty up to $2,500 per violation per day in addition to other penalties established by law. The Attorney General may bring an action in the name of the people or the Act allows individuals to bring a private action to obtain the civil penalty against marijuana businesses for failure to warn.

Before filing a lawsuit, the individual seeking a private action must provide a 60-day notice to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.  If, after 60 days, none of the referenced individuals/entities take action, then the individual may proceed with his or her private claim so long as he or she complies with the 60-day notice requirements.

In order for the 60-day notice to be compliant, the notice must include a copy of Prop 65, a description of the violation, the name of the individual seeking an action, the time period of the violation, the listed chemicals involved, the route of exposure (ingestion, dermal contact or inhalation), and a certificate of merit.  The individual bringing the action must certify that they have “consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action.”

Marijuana businesses may avoid such 60-day notices and potential litigation by becoming familiar with the various chemicals that require warning labels, placing warning labels on their products, and ensuring that the pesticide levels in the products are compliant with California regulations. A comprehensive list of the 800 chemicals identified by the State can be found here.

California’s ever changing cannabis regulations can be difficult to maneuver. If you would like to review your policies for compliance, you may contact one of Seyfarth Shaw’s attorneys for assistance.

By Benjamin D. Briggs, Brent I. ClarkJoshua M. Henderson, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA has recently amended its definition of “repeat” for inspcetion citations to reconcile differences from the Federal OSHA program. The updated rules expand potential liability to California employers.

In August 2015 Cal/OSHA published a Notice of Proposed Rulemaking regarding Repeat citations. The purpose of the amendment was to make California’s “Repeat” violation classification more consistent with Federal enforcement standards by eliminating the “current geographic restrictions” for issuing a “Repeat” citation, and recalculating the starting time for calculating the look back period for a “Repeat” violation. The final Repeat Regulation rule was recently adopted and will be effective on January 1, 2017.

As noted in the Cal/OSHA Final Statement of Reasons, the Director determined that at a minimum, “she must amend the look-back period from three to five years….” “The Director has determined that under Labor Code section 50.7(d), she may not reject Federal OSHA’s recommendation to eliminate establishment/geographic restrictions, because doing so would make California’s Repeat enforcement policy less effective than the federal policy, thus jeopardizing future state plan funding.”

Starting January 1, 2017, California employers will be at risk of a Repeat citation that is based on a previous final citation issued to the same employer anywhere within the State of California.

Also, Cal/OSHA will be able to base a Repeat citation on a previous citation that is many as five (5) years old. Employers should examine their citation history and understand how the new rules may impact their risk of Repeat citations.

The revised rules, which become effective January 1, 2017, clearly increase the risk of Repeat citations and the higher penalties that come with such citations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Brent I. ClarkJoshua M. Henderson, and Craig B. Simonsen

shutterstock_65596348Seyfarth Synopsis: The California Division of Occupational Safety & Health Standards Board approved last week its regulations on Workplace Violence Prevention in Health Care.

The California Division of Occupational Safety & Health (Cal/OSHA) Standards Board approved last week its regulations on Workplace Violence Prevention in Health Care, CCR Title 8, Section 3342. The Notice of Addition of Documents to California Code of Regulations was signed September 27, 2016, and the rule was passed by the Board on October 21, 2016. The draft has now been submitted to the Office of Administrative Law for review and approval (or not). If approved the rules will become final and will be submitted to the Secretary of State for promulgation.

We had blogged in 2015 about the Cal/OSHA draft proposed regulation that would require health-care employers, home health and hospice providers, and emergency responders to develop workplace violence-prevention plans, train their employees, and keep records related to workplace violence incidents. If adopted, the regulations also require certain hospitals to report violent incidents that resulted in an injury, involved the use of a firearm or other dangerous weapon, or present an urgent or emergent threat to the welfare, health or safety within 24 hours and all incidents within 72 hours.

Based on the definition of “reportable workplace violence incident” employers are required to report incidents that did not result in an injury if there was a high likelihood that injury, psychological trauma, or stress would result, or the incident involved the use of a firearm or other dangerous weapon. The regulations further require employers to take immediate corrective action where a hazard was imminent and take measures to protect employees from identified serious workplace violence hazards within seven days of the discovery of the hazard. Additionally, employers are required to maintain a “Violent Incident Log.”

The rule follows the enactment of SB 1299, requiring Cal/OSHA to have a workplace violence prevention regulation for healthcare workers promulgated by July 1, 2016. Yet, California was not alone. The regulation comes as emphasis on workplace violence increases in both federal and state plan OSHA jurisdictions. For instance, in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers”, in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA”, in December 2015 “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting”, and in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers”.

As part of the employer’s Injury and Illness Prevention Program (IIPP), under section 3342(c), the final rules require a “Workplace Violence Prevention Plan” (Plan) that is “in effect at all times in every unit, service, and operation. The Plan shall be in writing, shall be specific to the hazards and corrective measures for the unit, service, or operation, and shall be available to employees at all times. The written Plan may be incorporated into the written IIPP or maintained as a separate document”. In addition, the final rules do incorporate the “Violent Incident Log” provisions. The rules require that the “employer shall record information in a violent incident log about every incident, post-incident response, and workplace violence injury investigation”.

Covered employers in California should take care to evaluate their workplaces for potential workplace violence hazards and institute–and enforce–policies concerning training and reporting.  Certainly employers in California, or with a business presence in California, there is a heightened need to evaluate compliance with these new rules. In addition to modified policies, procedures, and training systems, these new rules may require substantial changes including physical facility changes and staffing increases.

Note that with or without these new rules, in California or out, an administrative enforcement action in the event of a workplace violence incident or related civil liability is a possibility. The new rules also incorporate substantial training, reporting, and recordkeeping provisions. Federal OSHA enforces workplace violence under the General Duty Clause. We would not be surprised to see the Federal OSHA referring to the California Rule in its citations in the future.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or the Workplace Policies and Handbooks Team.

By Jay W. Connolly and Aaron Belzer

bottleSeyfarth Synopsis: New California regulations provide more specific guidance on the content of Prop 65 “safe harbor” warnings, and on the corresponding methods for providing such warnings.

Come August 30, 2018, consumer products to be released into the California marketplace must meet new regulations under California’s infamous Proposition 65. On August 30, 2016, the California Office of Administrative Law approved the adoption of new regulations for clear and reasonable warnings under Proposition 65.

Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to give “clear and reasonable” warnings to California consumers before knowingly and intentionally exposing them to known carcinogens or reproductive toxins (“Listed Chemical”). Proposition 65 requires the Governor of California to publish and periodically update a list of known carcinogens and reproductive toxins. To date, almost 1,000 substances appear on this list.

Under the existing regulations, a warning is “clear’ if it effectively communicates that the Listed Chemical in question is known to the State of California to cause cancer and/or birth defects or other reproductive harm. It is “reasonable” if the method used by a business to transmit the warning is reasonably calculated to make the warning message available to the individual before exposure (for a consumer product, before purchase). The existing regulations provide “safe harbor” guidance regarding types of warning methods and general warning language for various exposures that are deemed “clear and reasonable” under Proposition 65.

The new regulations provide more specific guidance on the content of these “safe harbor” warnings, and on the corresponding methods for providing such warnings. Notably, the new regulations require the warnings to provide more detailed information to the public, including: (a) a clear statement that a person “can be exposed” to a Listed Chemical (rather than just a statement that a product or area “contains” a Listed Chemical); (b) the names of one or more Listed Chemicals that are the subject of the warning; and (c) a link to a website maintained by the California Office of Environmental Health Hazard Assessment (“OEHHA”) containing supplemental information. The new regulations also establish safe harbor warning methods for internet and catalog sales, requiring that businesses provide the warning on the webpage or in the catalog, as well as on the product. The new regulations may also require businesses to provide the warning in both English and in one or more foreign languages. For example, for consumer product exposures, a business must provide the warning both in English and in any other language used on a product’s sign, label or shelf tag.

The new regulations also clarify the relative responsibilities for providing consumer product exposure warnings between product manufacturers, producers, packagers, importers, suppliers, distributors and retailers. The new regulations require a manufacturer, producer, packager, importer, supplier or distributor of a product that is subject to Proposition 65 either: (1) to affix a warning to the product, or (2) to provide directly to the authorized agent for a retail seller written notice, which, among other things, identifies the exact name or description of the product requiring a notice, and encloses all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the Internet for the products at issue. The written notice must be renewed annually, or within 90 days when a different or additional Listed Chemical or endpoint (cancer or reproductive toxin) needs to be added to the warning.

The retailer, in turn, is responsible for the placement and maintenance of the warning materials, including warnings for products sold over the Internet, that the retailer receives from a manufacturer, producer, packager, importer, supplier or distributor of a product. Similarly, the retailer is responsible for providing the warning if: (1) the retailer is selling the product under its own (or an affiliate’s) brand or trademark; (2) the retailer itself is responsible for introducing a Listed Chemical into the product; or (3) the retailer has covered, obscured, or altered a warning label affixed to the product.

The new regulation becomes operative on August 30, 2018. In the interim, business can comply with the current regulations or the new regulations. Indeed, warnings on products manufactured before the operative date that comply with the current regulations are still considered clear and reasonable. Similarly, a business that is a party to a court-ordered settlement or final judgment establishing a warning method or content is still considered to be providing a “clear and reasonable” warning for purposes of the new regulation, if the warning complies with the order or judgment. Nonetheless, businesses may want to begin planning for the new regulations, particularly if they are contemplating introducing new products to the market, or are contemplating other changes to the labels on their existing products.

Jay W. Connolly is a partner in Seyfarth’s San Francisco office and Aaron Belzer is an associate in the firm’s Los Angeles office. They regularly represent and advise clients in Proposition 65 matters and developments. If you have any questions regarding this development or related issues please contact your Seyfarth Shaw LLP attorney, Jay Connolly at jconnolly@seyfarth.com, or Aaron Belzer at abelzer@seyfarth.com.

By Brent I. Clark and Ilana R. Morady

iStock_000076487827_LargeExpedited Hearings

A hot topic today is developments in the law of California OSHA (Cal-OSHA). Panel members are discussing the new and controversial rule on expedited proceedings under 8 CCR 373. Under the expedited proceedings rule, cases are put on a fast track when abatement has been appealed or abatement has not occurred.

Specifically, the rule states “Where the Appeals Board is aware or is notified that an alleged violation appealed is classified by the Division of Occupational Safety & Health as a Serious, Repeat Serious, Willful Serious, Willful, Willful Repeat or Failure to Abate, and either abatement is on appeal, or abatement has not occurred, the Appeals Board shall expedite the proceeding.”

When a case is expedited, a hearing must occur within 150 days of when an employer’s appeal is docketed. This new rule has proved itself to be very burdensome on employers, who are faced with either quickly preparing for hearing or abating alleged hazards which may have no actual basis in law or fact. This scheme brings California closer to other state plans which don’t permit appeals to stay abatement, especially because the effect has been that many employers are abating alleged hazards during the appeal process, regardless of whether the allegations have merit.

Heat Illness

As employers in California know, Cal-OSHA has a heat illness standard. A new provision under the standard involves access to shade. Specifically, 8 CCR 3395 now requires that employees be allowed and encouraged to take a preventative cool-down rest in the shade “when they feel the need to do so” to protect themselves from overheating. While everyone agrees that heat illness is a serious issue that must always be prevented to the extent possible, this new provision has the potential to create problems for employers because of the subjective nature of the rule and the potential for abuse by employees.

If employers encounter situations where they believe an employee is abusing the “when they feel the need to do so” requirement, they must remember to proceed with caution. Unfortunately the vague nature of the rule does not provide a lot of guidance on how employers can react these situations while avoiding potential citations or retaliation allegations.  The new regulation also requires employers to pay an additional hour of pay whenever they fail to meet the requirements of the standard.   This creates an additional non-OSHA penalty monetary obligation that can present challenges for covered employers.

Repeat Violations

The definition of what constitutes a repeat is changing. Currently the “look back” for repeats in California is 3 years. Now, keeping in line with federal-OSHA, Cal-OSHA is expected to start to looking  back 5 years. The other change that will occur is Cal-OSHA will be citing repeat violations based on previous state-wide violations.

This is a significant change; previously, Cal-OSHA could only cite for a repeat violation if the previous violation occurred at the same facility. We will blog an update when this new rule takes effect. The date is uncertain at this time but could be within the next few weeks.

By Mark A. Lies, II and Ilana R. Morady

iStock_000004162096LargeAs many employers know, California frequently does things a little differently than other jurisdictions. Cal/OSHA is no exception.

When it comes to injury/illness reporting, Cal/OSHA (a.k.a. “the Division”) requires “any serious injury or illness, or death” to be reported within 8 hours to the nearest District Office. Serious injury or illness means any incident requiring inpatient hospitalization in excess of 24 hours (for other than medical observation) or in which an employee suffers a loss of any member of the body or any serious degree of permanent disfigurement.

Cal/OSHA’s published guidance explains that this reporting requirement applies to “work-related or suspected work-related” incidents. Certain Cal/OSHA District Offices, however, are taking the position that all serious injuries or illnesses and deaths must be immediately reported, regardless of whether they are work-related.

This is a significant departure from federal OSHA reporting requirements, which only apply to work-related incidents. It means that employers in California face potential citations if they do not report incidents such as heart attacks or brain aneurisms that have no relation to the work environment.

While it may seem unnecessary and illogical to have to report non-work-related incidents to the agency, a recent case decision from the Cal/OSHA Occupational and Safety Appeals Board confirms that Cal/OSHA’s broadly worded reporting requirement — “Every employer shall report immediately by telephone or telegraph to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment”– does not limit reports to work-related incidents.

The Board decision (In the Matter of the Appeal of Honeybaked Hams, Docket 13-R3D1-0941, June 25, 2014) upholds a citation issued to the employer who did not report the death of an employee who suffered a brain aneurism. The Board stated that the reporting regulation, 8 CCR 342, “requires reporting of employee injuries, illnesses and deaths which occur on an employer’s premises, even if they are not work related.” The Board acknowledged Cal/OSHA’s guidance to the contrary, but found that the guidance cannot be relied upon by employers.

This is of course very important information for all California employers covered by Cal/OSHA. What is concerning, however, is that the various Cal/OSHA’s District Offices are apparently not all on the same page. We are seeing clients who have had Cal/OSHA tell them they must report non-work-related incidents, and other clients who have had Cal/OSHA actually refuse to accept the information of reports that do not involve work-related incidents. Either way, Cal/OSHA will not investigate incidents that are unrelated to the work environment. However employers must be aware that they should still be reporting these incidents and may be subject to citation if they fail to do so.

By Jay W. Connolly, Aaron Belzer, and Jared L. Palmer

On April 28, 2015, the Environmental Law Foundation (“ELF”) filed a petition in the California Supreme Court for review of the Court of Appeal’s recent decision in Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al., No. A139821, 2015 WL 1212155 (Cal. Ct. App. Mar. 17, 2015) (“ELF v. Beech-Nut, et al.”).

The Court of Appeal’s decision is widely viewed as providing a measure of relief for companies defending against the flood of bounty hunter enforcement actions brought under California’s Proposition 65 (“Prop. 65”).  Moreover, it is unclear whether the Supreme Court will find review warranted given the straightforward analysis of the trial court and Court of Appeal.

Prop. 65 (officially the Safe Drinking Water and Toxic Enforcement Act of 1986) requires businesses to warn California consumers of potential exposure to carcinogens or reproductive toxins in a company’s products.  By law, a company must provide such warnings unless it can demonstrate that exposure to a Prop. 65 chemical in its product poses “no significant risk” of cancer if daily exposure to it over 70 years would result in no more than one excess case of cancer per 100,000 individuals exposed, and/or that exposure to a reproductive toxin causes “no observable effect” to humans or laboratory animals at 1,000 times the level present.  To guide businesses in determining whether a warning is necessary, the Office of Environmental Health Hazard Assessment (“OEHHA”) has developed “safe harbor” levels for certain chemicals.  A business is not required to warn if exposures to those chemicals are at or below these “safe harbor” levels.

In its decision, the Court of Appeal affirmed the trial court’s ruling that the level of exposure to a Prop. 65 chemical could properly be calculated by averaging exposures over time and over multiple products, rather than by using a maximum exposure from a single product on a single day.  The ruling thus clarified the applicable standard for determining whether potential exposures require Prop. 65 warnings, and increased the burden on plaintiffs to claim credibly that potential exposures require warnings.

While the Court of Appeal’s decision in ELF v. Beech-Nut, et al. is significant, it now must survive ELF’s Petition and potential review by the Supreme Court.  Moreover, the decision faces other threats that may reduce its impact even if the Petition is denied or the case is affirmed by the Supreme Court.

The ELF v. Beech-Nut, et al. Decision

In 2011, ELF sued the manufacturers and retailers of various foods intended for babies and toddlers to enforce Prop. 65.  It alleged that defendants failed to warn California consumers of harmful levels of lead in certain of defendants’ products.  After a bench trial, the trial court found in defendants’ favor, concluding that they had no duty to warn because they sufficiently demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead fell within the regulatory “safe harbor” levels.  ELF appealed the judgment, arguing that the trial court erred in interpreting Prop. 65 so as to allow defendants to average lead test results over multiple lots, and to average the level of exposure over multiple days.  The California Attorney General filed an amicus curiae brief in support of ELF’s position.

The Court of Appeal affirmed the trial court’s ruling.  Specifically, the Court of Appeal found that nothing in the Prop. 65 regulations prohibited defendants from calculating exposure by averaging lead test results over multiple lots, instead of evaluating each lot individually, nor prohibited defendants from averaging the single-day lead exposure from their products over a number of days before comparing the exposure to the “safe harbor” levels.  It found that sufficient evidence existed to support defendants’ methodology of averaging test results across lots for a single product—noting that ELF’s expert relied on the same sample results as defendants’ expert—and that substantial evidence also supported defendants’ averaging of exposures based on the amount of lead to which a consumer was exposed over a 14-day period, despite the fact that lead is capable of acute toxicity.  In reaching its decision, the Court of Appeal rejected ELF’s contention that Prop. 65 prohibits defendants from calculating an average exposure over an extended period of time and then comparing it to the OEHHA “safe harbor” levels, but rather requires defendants to accept a single day exposure period (i.e., that a defendant cannot convert a single-day maximum exposure over the “safe harbor” level into an average exposure over an extended period of time).

Threats to the Decision

The ELF v. Beech-Nut, et al. decision may shield Prop. 65 defendants from claims based solely on a single test of a single sample by allowing defendants to calculate exposure based on average exposure over time (and based on test results averaged over multiple lots).  The decision, however, must survive several challenges before defendants may feel its impact.  Not only must it survive ELF’s Petition and potential review by the Supreme Court, but also proposed changes to Prop. 65 itself, as well as legal challenges to the relevant “safe harbor” levels.

On January 16, 2015, OEHHA formally proposed extensive modifications to the Prop. 65 warning regulations.  Because the proposed changes have yet to be adopted or implemented, it is yet to be seen whether OEHAA may attempt to expand the scope of the proposed modifications to address the ELF v. Beech-Nut, et al. decision.

Similarly, the impact of the ELF v. Beech-Nut, et al. decision may be limited with respect to alleged lead exposures by a recent challenge to the existing “safe harbor” levels for lead.  In Mateel Environmental Justice Foundation v. California Office of Environmental Health Hazard Assessment, No. RG15754547 (Alameda Sup. Ct. Cal. Jan. 13, 2015), plaintiff seeks a writ of mandate to compel OEHHA to invalidate the safe harbor for lead, arguing that there is no safe harbor for lead.  If plaintiff is successful, defendants in lead cases will no longer be able to rely on the ELF v. Beech-Nut, et al. decision to support their defense.

Conclusion

The Court of Appeal’s decision in ELF v. Beech-Nut, et al. provides defendants in Prop. 65 enforcement actions with a clear standard for determining whether potential exposures require warnings.  Nonetheless, in light of the various challenges it faces, its impact on Prop. 65 enforcement suits remains unclear.

By Ilana R. Morady and Meagan Newman

On January 15, 2015, California’s Office of Environmental Health Hazard Assessment (OEHHA) published a Notice of Proposed Rulemaking to modify the clear and reasonable warning regulations under Proposition 65.

As most businesses residing in or doing business in California know, Proposition 65 is the law that requires businesses to notify Californians about the presence of certain chemicals in buildings, workplaces, consumer products, and foods. The notification must be “clear and reasonable,” however a business’s obligations under the “clear and reasonable” regulations can be difficult to discern – especially for businesses who are not engaged in retail sales. The proposed modifications seek to elucidate the “clear and reasonable” warning requirement, in large part by setting forth the specific responsibilities of manufacturers and others in the chain of distribution for products that are eventually sold at retail.

The proposed regulation also contains significant changes to the warning language required for “safe harbor.” Under the current regulations, warning language stating that the “product contains a chemical known to the State of California to cause” cancer, birth defects, and/or other reproductive harm is sufficient. However under the proposed regulations, warnings would have to include, among other things, the wording “WARNING” in all capitals and bold print, the language “this product can expose you to a chemical,” and reference to OEHHA’s Proposition 65 website. Additionally, twelve chemicals would have to be specifically identified on a Proposition 65 warning: acrylamide, arsenic, benzene, cadmium, carbon monoxide, chlorinated tris, formaldehyde, hexavalent chromium, lead, mercury, methylene chloride and phthalate(s).

The proposed regulation represents a significant change, and, if finalized, will undoubtedly add to the burden of Proposition 65 compliance. On March 25, 2015, a public hearing will be held on the proposed changes. The comment period for the proposed changes closes on April 8, 2015. If the amendments are finalized, they would not take effect for two years to provide manufacturers, distributors, and retailers a “sell through” period.

For our readers with California facilities and interests, Patrick D. Joyce has prepared a Management Alert on California’s new Industrial Stormwater Permit (2014 General Permit), which will apply on and after July 1, 2015. Industrial General Permit, 2014-0057-DWQ.

The California State Water Resources Control Board’s newly adopted industrial stormwater permit regime includes a broader array of industrial facilities not previously covered, increases sampling and monitoring requirements, and implements new Best Management Practices.  Due to the complexity and breadth of the new 2014 General Permit, affected facilities should consider consulting with environmental counsel and a stormwater consultant for further guidance.

Checkout the full Management Alert for complete details.

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.