New law SB 1360 has clarified that recovery periods, like rest periods, are paid time. This is a significant clarification of the law since there was an ambiguity in the past whether recovery periods were to be treated as paid time or unpaid time. Until now, the situation was unclear as recovery periods were mandated by California Occupational Safety and Health (Cal-OSHA) regulations, not the California Labor Code.
Previously enacted legislation creates a new employer liability involving employees who work outside and who miss recovery or “cool down” periods. These regulations generally come into play when the temperatures exceed 85 degrees. Since Jan. 1, 2014, California requires employers to provide one hour of pay to employees for missed recovery or “cool down” periods to prevent heat illness. Previously, only missed meal periods and rest breaks must be paid (this has been the subject of much litigation, including wage-and-hour class actions, against California employers over the last decade).
A “recovery period” is “a cool down period afforded an employee to prevent heat illness.” Under Section 226.7, employers cannot require an employee to work during a recovery period provided by applicable statute, regulation, or standard, or an order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health (the Division).
When outdoor temperatures exceed 85 degrees Fahrenheit, an employer must provide one or more areas of shade that are open to the air or have ventilation or cooling. When outdoor temperatures do not exceed 85 degrees Fahrenheit, the employer must provide “timely” access to shade upon an employee’s request.
The number of recovery periods, unlike the meal-and-rest periods required by California Labor Code Section 512 and applicable IWC Wage Orders, is not controlled by the length of the scheduled work time in a day. The regulations do not address whether an employer may limit the number of recovery periods in a single shift or work day. They also do not address whether the employer may limit the length of a recovery period to five minutes or some other period.
Thus, at a minimum, employers with outdoor places of employment (or with employees who work outside for part of the day) should consider taking the following steps:
Revise meal-and-rest-period policies to include recovery periods or implement a separate, written policy providing recovery periods; Adopt a written heat illness prevention program or reevaluate written materials for existing programs to ensure compliance with all applicable requirements of Section 3395; and Implement procedures to pay employees for missed recovery periods.
For more details on heat illness in the workplace, please see our article, “The Heat is on For California Employers.”