The current heatwave gripping most of the west is a stark reminder for California employers of the need to develop and implement a Cal/OSHA compliant heat illness prevention program for employees that work outside.
During these hot summer months, California employers should take a temperature check on their compliance with mandatory state regulations regarding the prevention of heat-related illness among employees who work outdoors. Among other things, these regulations require employers to provide water, access to shade, cool-down recovery breaks, and training to all employees and supervisors in outdoor workplaces.
- Develop and implement a written heat illness prevention plan that includes procedures to follow in the event of an emergency.
- Train employees and supervisors on heat illness prevention.
- Provide employees with fresh, cool drinking water free of charge. Each worker should be able to drink at least 1 quart per hour, and employers should encourage workers to do so.
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Encourage employees to rest in the shade for at least 5 minutes when they feel the need to do so to avoid overheating. (Cal/OSHA emphasized that employees "should not wait until they feel sick to cool down." It is also important to note that these short "cool down" breaks are in addition to the 10-minute rest breaks that employers must provide under California's wage orders – more on that below.)
- Provide shaded areas when temperatures exceed 80 degrees Fahrenheit. (Note that employees have the right to request and be provided shade to cool off at any time, regardless of the temperature.)
Access to Shade
The shaded area that an employer provides must be "open to the air or provided with ventilation or cooling." Additionally, the size of the shaded area must "be at least enough to accommodate the number of employees on recovery or rest periods, so that they can sit in a normal posture fully in the shade without having to be in physical contact with each other.” The shaded area must be located as close as practicable to the work area.
"Cool Down" Break Requirements
When a worker takes a "cool down" break, the worker: (1) must be monitored for symptoms of heat illness; (2) must be encouraged to remain in the shade; and (3) must “not be ordered back to work until any signs or symptoms of heat illness have abated, but in no event [after] less than 5 minutes in addition to the time needed to access the shade.”
Additional "high heat day" requirements apply when the temperature reaches or exceeds 95 degrees Fahrenheit. These include more frequent communications and reminders to employees to take recovery breaks and drink water, as well as having employees use the "buddy system" and designating one or more employees to call for emergency services when necessary.
Differences Between "Cool Down" Breaks and Meal and Rest Breaks
Recovery or "cool down" breaks differ in a number of ways from traditional meal and rest breaks:
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First, unlike meal and rest breaks, which have strict timing and frequency requirements, no such requirements exist for recovery breaks. Employers must provide recovery breaks to employees any time they feel the need to take such a break to avoid overheating.
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Second, unlike meal and rest breaks, which have set durations (30 and 10 minutes, respectively), recovery breaks must be at least 5 minutes (i.e., they can last much longer than 5 minutes if necessary for the employee to recover from the heat).
- Third, unlike meal and rest breaks, where employers have no duty to "police" employees during their breaks to ensure that no work is being performed, employers do have a number of affirmative duties with respect to "cool down" breaks. These include: (1) encouraging employees to take such breaks; (2) monitoring employees and asking them whether they are experiencing symptoms of heat illness while on a recovery break; and (3) "provid[ing] appropriate first aid or emergency response" as appropriate.
Written Plan Requirements
As long as they are effective, an employer's heat illness prevention plan can be integrated into its broader Injury and Illness Prevention Program ("IIPP"). In any event, the heat illness prevention plan must be available in English and the language understood by the majority of the employees at the jobsite. Employers must keep copies of the plan at the jobsite (or nearby) so that they can be made available to employees and/or representatives of Cal/OSHA upon request.
California employers with employees who work outdoors should ensure that they have an up-to-date heat illness prevention plan in place and that they are training all relevant employees and supervisors on these issues. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700, or visit us online at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Daniel J. Corbett*
Ballard Rosenberg Golper & Savitt, LLP
* Currently a Provisionally Licensed Lawyer in California
