On June 28, 2014, Governor Brown signed into law SB 1360 which 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. At the center of the confusion was that recovery periods were mandated by California Occupational Safety and Health (Cal-OSHA) regulations, not the California Labor Code.

California previously enacted legislation that creates a new employer liability involving employees, who work outside, when they 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. Prior to the amendment, Section 226.7 applied only to missed meal periods and rest breaks, which have been the subject of much litigation, including wage-and-hour class actions, against California employers over the last decade.

A “recovery period” is defined as “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.