By Christopher Boman


 


An employee at any company might tell his supervisor, “Hey, I’m feeling too hot. I want to sit down and take a rest.” Hopefully, few supervisors would dismiss or deny such a request in outdoor industries such as landscaping, agriculture and groundskeeping. A competent supervisor shouldn’t wait to be asked a direct question. He or she should be aware of the signs of physical discomfort commonly associated with heat exhaustion, heat stroke or other heat illnesses. Factors that contribute to overheating include high temperatures, humidity, direct sunlight and natural body heat from physical activity. Dizziness, weakness, clammy skin, irritability and nausea are signs of heat exhaustion that need immediate medical attention. Symptoms of heat stroke include confusion, faintness and seizures. Common sense, compassion, and workers’ compensation costs should make the decision to authorize time for an employee to “cool down” automatic.


In 2010, the Occupational Safety & Health Administration (OSHA) launched a Heat Illness Prevention Program to educate employers and employees on how to recognize signs of various heat illnesses and inform them of employees’ heat safety rights. While OSHA does not have a standard for heat illness, it relies on the General Duty Clause to cite employers who are not adequately protecting workers from the heat. Additionally, several states have laws regulating heat-illness prevention of which employers must be mindful.


For example, California law requires most employers whose employees work outdoors to implement a written Heat Illness Prevention Plan that references the cool down periods. Effective January 1, 2014, California are now required to pay a premium of an hour’s pay for failing to provide or denying non-exempt employees what has become officially known as a “recovery period.” In contrast, Washington state does not require cool down periods but mandates how much water an employer must supply employees per hour. Various states have laws that require potable water to be available at varying amounts, distances, and other factors.


 


What are the legal requirements of a recovery period? Although OSHA does not have a standard for heat illness prevention practices, investigations into any claims may end in citation for employers who are not properly protecting their employees from heat-related illnesses. Furthermore, many employers may choose to follow California’s heat illness standard to prevent any potential citations or lawsuits.


In California, the recovery period must be duty free, taken in a shaded area, and last at least five minutes but may last longer. An employee may take an unscheduled recovery period as frequently as he or she considers necessary to prevent overheating or recover from symptoms of heat stress.


 


Who is eligible to take a recovery period? Generally, an employee who works outdoors is eligible. Employers should be sure to carefully monitor employees working outdoors to ensure that they are not suffering from heat stroke, heat rash or any other illnesses, and provide a recovery period for those showing any symptoms or signs. The time needed for each employee to “cool down” may vary depending on a number of factors, and managers should be educated about symptoms to be aware of in order to avoid any heat illness or heat-related incidents.


 


What are legal risks of failing to provide a recovery period? In 2013, federal OSHA issued 13 General Duty Clause citations to employers based on heat illness incidents and/or employee complaints. Individual employees may file a claim through federal OSHA or through their individual state’s occupational safety organizations. Individuals or groups may file a private lawsuit to recover unpaid premiums and seek additional penalties. The most serious risk, however, is a class action lawsuit alleging that employees were denied the ability to take recovery periods when needed.


 


How should an employer move forward? Determine if any of your company’s employees work outdoors. Management should inform these employees in writing (with a written acknowledgement placed in each employee’s personnel file) of their right to take a recovery period. Employees should further be directed to contact a specific member of management (the human resources director, for example) if they are not permitted to take a needed break. Your company should document its compliance efforts in the same manner it monitors employee meal breaks and rest periods. Equally important, your supervisors should be trained to recognize heat stress and be prepared to direct employees to take a recovery period. Supervisors should also be trained concerning when and under what circumstances employees have the right to decide to take such a break.


California’s new law is important even for non-California employers. Many states adopt legislation similar to those implemented in California.


 


Christopher Boman is a partner in the Irvine office of Fisher & Phillips (www.laborlawyers.com), a national labor and employment law firm. Boman can be contacted at cboman@laborlawyers.com.