By Alka N. Ramchandani and Michael D. Thompson
In recent years, Cal-OSHA has taken an aggressive stance against exposing employees to potential heat illness, often citing employers and proposing significant penalties for failing to provide to employees who work in high heat conditions with adequate drinking water, shade, training, and/or cool-down periods. Furthermore, as noted by the California Supreme Court in Brinker v. Superior Court, monetary remedies for the denial of meal and rest breaks “engendered a wave of wage and hour class action litigation” when added to the California Labor Code more than a decade ago.
The California Legislature has brought these two trends together by amending California Labor Code Section 226.7 to include penalties for employers’ failing to provide “Cool Down Recovery Periods” (“CDRPs”) to prevent heat exhaustion or stroke. The requirement to provide CDRPs kicks in January 1, 2014, after which California employers will be required to pay a wage premium for failing to provide CDRPs to employees. This premium pay is akin to the premium pay already required for violations of California’s meal period and rest break laws. The amendment is sure to trigger substantial litigation in California, and cross over into Cal/OSHA enforcement as well.
California’s Heat Illness Prevention Statute
California employers have long been aware of California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which obligates employers to provide training and access to shade and adequate drinking water for employees who work outdoors in high heat conditions. Pursuant to the Heat Illness statute, employers have also been required to maintain one or more shaded areas, 
with either open-air ventilation, forced ventilation, or forced cooling, and employers are required to allow employee access and encourage employees to access these shaded or cooled areas for cool down periods of no less than five minutes or as employees feel the need to do so. Historical Cal-OSHA Board decisions and Standard Board committee notes have refused to characterize these cool down periods as work-free breaks; i.e., employers may require employees to continue working during periods when they are in shade or air conditioned locations.
Although heat illness has been an enforcement focus across the country, Cal-OSHA is the only OSHA scheme that has its own Heat Illness specific standard. While federal OSHA has increased its use of the General Duty Clause to cite heat illness issues, Cal-OSHA has led the way in this enforcement space.
California Labor Code Section 226.7
Pursuant to California Labor Code section 226.7, employers are already required 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 non-exempt employee with a rest break. This law has produced numerous class action lawsuits throughout California. Under the recent CDRP amendment, any failure to provide a cool down recovery period will obligate the employer to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a recovery period is not provided. Employers now face more than just serious citations under Section 3395(d), but also cited or sued by employees (or classes of employees) for failure to provide CDRPs pursuant to California Labor Code Section 226.7.
Pursuant to this statute, California employers have suffered through a barrage of wage and hour single plaintiff and class action lawsuits related to California’s meal and rest break requirements under Section 226.7. This recent history has shown that compliance with these work-free periods is difficult, and demonstrating compliance is even more so. More importantly, the potential penalties and civil judgments are extremely high.
The Amended Statute
On October 10, 2013, that changed. The California Legislature joined Cal-OSHA’s cause and signed a new bill into effect amending California Labor Code Section 226.7 to include penalties for failure to provide CDRPs. Section 226.7 provides in pertinent part:
If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable
statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.
Section 226.7 also states that “‘recovery period’ means a cooldown period afforded an employee to prevent heat illness.” In addition to the added penalties, the Legislature has required work-free CDRPs, stating:
An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.
The statute therefore converts what had simply been a period in which employees can cool down (whether working or not) to work-free periods pursuant to Section 226.7. The Legislature reasoned that a 2007 survey identified that more than 70% of workers “voluntarily” worked through rest periods to avoid losing money and that this bill extends existing rest period protections to any applicable statute, regulation, or order by the Appeal or Standards Boards.
One interesting distinction between Section 3395(d) (Cal-OSHA’s Heat Illness Standard) and Section 226.7 (the new CDRP legislation), is that the Heat Illness rule applies only to employees who are working in high heat conditions. The new CDRP legislation does not identify specific working conditions that would trigger the requirement to provide a CDRP. Employees working in air conditioned offices, therefore, may also be entitled to CDRPs if their employment puts them at risk for heat illness.
Conclusion
So what can employers do to protect themselves? It is important for California employers to review their Heat Illness Prevention Plans, notify employees of the company’s policy requiring work-free recovery periods and conduct diligent and comprehensive training to ensure employees understand their obligations. Employers also need to develop CDRPs Plans, and carefully instruct employees to take CDRPs, as needed. Your plan should also specifically state that the employee is relieved of all work during the five-minute CDRP. Supervisors should be trained to allow employees to take work-free CDRPs as needed, and to enforce the Plan effectively. Finally, employers should develop procedures for documentation of CDRPs.