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.”

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Photo of Jonathan A. Siegel Jonathan A. Siegel

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and…

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and counsel regarding labor and employment law with respect to various issues ranging from wage and hour law, reduction in force, WARN Act, discipline, leave management and harassment and discrimination issues. Mr. Siegel defends employers regarding different varieties of wrongful termination and discrimination claims.

Mr. Siegel has represented management in union organizing drives and regularly defends employers in unfair labor practice proceedings as well as in collective bargaining and arbitrations. He also has extensive experience conducting wage and hour preventive audits. He conducts single location and multi-location audits for employers. The scope of such audits can range from examining specific issues, i.e., exempt status under federal law and California, to comprehensive FLSA and California Labor Code audits. Mr. Siegel has conducted audits for a wide range of industries including, but not limited to manufacturing, retail, transportation, various service industries, defense contractors and healthcare.

Mr. Siegel regularly speaks on a variety of topics including wage and hour, harassment/discrimination, national and California employment trends, Workers’ Compensation, EEO, managing leaves of absence under FMLA and state leave laws and union avoidance. He has moderated numerous programs and is featured as a keynote speaker for several different organizations.