Regulations applying to Heat Illness Prevention and governing leave under the California Family Rights Act have recently been updated. California employers should examine their policies and training programs to ensure that both are in compliance.
It's Getting Hot in Here
The Heat Illness prevention regulations promulgated by California Occupational Safety and Health Administration (Cal/OSHA) were updated effective May 2015 (8 Cal. Code of Regs. § 3395).
The new regulations provide additional protections for employees working in the heat. In addition, the regulations now require employers to articulate plans for emergencies and to train all employees. The enhanced protections include:
Shade Requirements: Shade is required whenever the work site temperature exceeds 80 degrees. If there is no available shade on the work site, the employer must provide a shade structure. Employers are to monitor the temperature and be prepared to provide shade.
When shade is required, it must be in a location that does not "deter or discourage access or use." Employees should not have to cross traffic or waterways to reach the shade. Shade must be sufficient for all employees on a meal or rest break to sit in the shade at one time. The regulations recognize that breaks may be staggered, so that the shade need not be large enough to accommodate all employees at the work site at once.
Water: Water must be kept as close to the employees as practicable. It must be fresh, pure and suitably cool. The water should be cooler than the air temperature, but not cold enough to cause discomfort.
Cool-down Periods: Employees must be allowed and encouraged to take a preventive cool-down rest when they feel the need to do so to protect against overheating. Employees who take a cool-down rest are to be monitored and encouraged to remain in the shade.
The cool-down rest must allow the employee at least five minutes in the shade, and the employee may not be ordered back to work until signs of heat illness have abated. If the employee shows or reports symptoms of heat illness, first aid or emergency care is to be administered.
High-heat procedures are new to the regulatory scheme. When the temperature exceeds 95 degrees, additional protections are to be implemented.
These include effective observation or monitoring for heat-related illness, improved communications and designated procedures for calling emergency medical assistance. In addition, the high-heat procedures are to be reviewed in a pre-shift meeting, during which all employees must be encouraged to drink plenty of water and take cool-down rests, when needed.
Emergency response procedures are also required under the new regulations. The emergency response procedures should include ensuring that supervisors recognize the symptoms of heat illness, understand how to prevent progression of the condition and know basic first aid. Emergency response procedures must also include a plan for effective emergency communications.
Employers are now required to train all employees, with supervisors receiving more detailed training. In addition, employers are required to publish a heat illness prevention plan in both English and the language understood by the majority of employees.
Cal/OSHA is publicizing the changes. During any inspection, including those following a serious workplace injury, the agency will review the heat illness prevention policy for compliance.
We Are Family
The California Fair Employment and Housing Council has changed the regulations governing leave under the California Family Rights Act, California Government Code § 19245.2 (CFRA). Many changes adopted are to regulations implementing the federal Family and Medical Leave Act, 29 U.S.C. sec. 2601, et seq. (FMLA).
The CFRA amendments are contained in Title 2, California Code of Regulations, Article 11, § 11087 et seq., and became effective July 1, 2015. Key changes include:
Joint Employers: Determination of whether or not a joint employment relationship exists requires examination of the entire relationship and will generally exist: (1) where the entities have agreed to share employees; (2) where one employer acts in the interests of the other with respect to the employee; or (3) where there is common control between the businesses.
Employee Work Site Definition: Determination of whether an employee works within 75 miles of 50 employees and is, therefore, eligible for leave, has been refined. A work site can refer to a single location or a group of contiguous locations. If the employee lacks a fixed work site, the employee's assigned home base, from which her or his work is assigned, or to which the employee reports, is used, even if not in the same state.
Leave Eligibility: For employees who begin leave before having completed the 12 month length of service requirement for eligibility, if the leave would otherwise qualify for protection under the CFRA, the time off counts toward the length of service.
Thus, an employee who works full time for 11 months, then takes workers' compensation leave would not be eligible for CFRA leave until the anniversary of her or his hire date. The first month of time off would not be protected under CFRA, nor would it count against the employee's leave entitlement. Once the employee's anniversary date passes, she or he would be eligible for the full 12 weeks of CFRA leave.
Employer's Time to Respond to Leave Request: Under both state and federal laws, the employer now has five business days to respond to an employee's request for leave.
Certification of Need for Leave: An employee must be given not less than 15 days to provide certification. The request for certification must advise the employee of the consequences of failure to provide adequate certification.
Absent extenuating circumstances, if the employee fails to provide certification within 15 days, the employer may deny CFRA protections for leave after the 15 days, until the employee provides a sufficient certification. If the employee never produces the certification, the leave is not CFRA leave.
Rights on Return: On return from CFRA leave, an employee is entitled to the same or comparable position. Any comparable position should be "virtually identical" to the employee's former position in pay, benefits, shift, schedule, geographic location, working conditions, privileges, perquisites and status. The position must involve the same or substantially similar duties and responsibilities.
Key Employee Provisions: The regulations provide substantial clarification to provisions allowing an employer to deny reinstatement to a "key employee," including a test for determining whether an employee is a "key employee" and the employer's notice obligations.
Return to Work: An employer may not require an employee to undergo a fitness-for-duty examination as a condition of an employee's return. After an employee returns from CFRA leave, any fitness for duty examination must be job-related and consistent with business necessity.
Use of Paid Time Off: The regulations detail when an employer may require use of accrued paid time off, and differ depending on the reasons for the leave. One area to note is that Paid Family Leave to care for the serious health condition of a family member or to bond with a new child is not "unpaid leave." The employer may not, therefore, mandate the use of any accrued paid time off.
Health Insurance: Detailed information is provided regarding when and how an employer should collect the employee's portion of health care premium, and what is required to terminate benefits for non-payment.
Retaliation Protections: Additional detail is provided about the scope and nature of protection against interference with CFRA rights and retaliation.
New Notice and Certification Requirements: The regulations add new notice requirements and a new medical certification form.