Jun 17

Shady Business: Outdoor Employees Can Cool Down in the Shade

In California, an outdoor employee has the right to cool down in the shade.

In California, an outdoor employee has the right to cool down in the shade.

Let there be light! Unfortunately, too much light can endanger an outdoor employee’s health if California temperatures keep breaking records. So the California Division of Safety & Health (Cal/OSHA) has revised its “heat illness prevention” (HIP) standard to let there be shade. Every outdoor employee has the right to preventative cool-down rests in the shade, for a minimum of five minutes, whenever he feels the need to prevent overheating. Similarly, every outdoor agricultural employee has the right to preventative cool-down rest periods in the shade, for a minimum of 10 minutes, every two hours.

Can an Employee Cool Down in the Shade? No Sweat

If the outdoor temperature in the work area exceeds 80 degrees, the HIP standard says shade must be “present.”1 That means the employer must maintain at least one shaded area at all times.2 The shaded area must be open-air, ventilated, or cooled.3 The amount of shade in the shaded area must be at least enough to accommodate the number of employees on meal, rest, or recovery periods.4 The employees must be able to sit in a normal posture, be fully in the shade, and not touch each other.5 In addition, the shade must be as close as practicable to the areas where employees are working.6

If the outdoor temperature in the work area “does not exceed” 80 degrees, however, the HIP standard says shade only has to be “available.”7 The employer must either: (1) provide access to shade as if the temperature exceeded 80 degrees (e.g., he must maintain at least one open, ventilated, or cooled shaded area with enough shade to accommodate employees on their breaks); or (2) provide timely access to shade upon an employee’s request.8 The wording of the HIP standard (“does not exceed 80 degrees”) suggests that an employer must provide all outdoor employees with access to shade even in subzero temperatures.

Of course, a shaded area is useless if it traps so much heat that it defeats the purpose of shade: to let the body cool.9 Similarly, an employer can’t deter or discourage outdoor employees from accessing or using shade.10 The employees must not encounter obstacles or hazardous or “unreasonably unpleasant” conditions on the way to or in the shaded area. For example, an employee shouldn’t have to cross a busy highway or ford a river to reach the shaded area. Likewise, the employer can’t locate the shaded area next to or inside a portable toilet facility, under a beehive, on manure or mud, or in a bramble bush.

Even if the temperature is 180 degrees, however, an employer doesn’t have to maintain a shade structure or otherwise have shade present on a “continuous basis” if such measures would be “infeasible or unsafe.”11 Instead, he may rely on alternative procedures for providing access to shade if they provide employees with protection equivalent to a shaded area.12 But an employer can provide misting machines or other cooling measures in lieu of shade altogether if: (1) he isn’t in the agricultural industry; and (2) he can demonstrate that such measures are at least as effective as shade.13

Turning Up the Heat on Shady Employers?

If an employer fails to provide outdoor employees with a meal, rest, or recovery period “in accordance with” state law, including any applicable Cal/OSHA “regulation, standard, or order,” he’ll owe each employee an additional hour of compensation at his regular rate of pay.14 Consequently, an agricultural employer who fails to provide shade to outdoor employees during a cool-down rest period fails to provide a cool-down rest period “in accordance with” the HIP standard altogether. That’s true even if he lets employees go on cool-down rest periods every two hours.

But only a cool-down rest period is a “recovery period.”15 This might lead to perverse results. For instance, a farmer who lets his farm hands take a cool-down rest period in the living room of his air-conditioned house might nonetheless owe each of them an hour of pay if he fails to provide access to shade in any way, i.e., by letting them walk by a pile of manure or other “unreasonably unpleasant” condition to get to his house. Conversely, an employer who refuses to provide any shade at all to his outdoor employees during a cool-down rest won’t owe a dime in back wages, even if you could fry an egg on the sidewalk.

But civil penalties are a different story. If an employer violates “any occupational safety or health standard” – including the HIP standard – the civil penalties will be scalding: up to $7,000 per violation if the violation is “not…of a serious nature,”16 up to $25,000 per violation if the violation is “serious,”17 and up to a whopping $70,000 per violation if the violation is “willful or repeated.”18 For instance, an employer who fails to make shade “available” to 10 employees during one five-minute cool-down rest on an 80-degree day – probably not a serious violation – might still owe $70,000 (i.e., $7,000 x 1 violation x 10 employees)!

  1. 8 CCR §3395(d)(1). 

  2. Id

  3. Id

  4. Id

  5. Id

  6. Id

  7. 8 CCR §3395(d)(2). 

  8. Id

  9. 8 CCR §3395(b). 

  10. 8 CCR §3395(b). 

  11. 8 CCR §3395(d). 

  12. Id

  13. Id. 

  14. Lab Code §226.7(c). 

  15. Lab. Code §226.7(a)(a “recovery period” is a “cooldown period…to prevent heat illness”); 8 CCR §3395(e)(6)(cool-down rest period” is the same thing as a “recovery period” under Section 226.7). 

  16. Lab. Code §6427. 

  17. Lab. Code §6428. 

  18. Lab. Code §6429. 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.