Nov 3

Cool Story: Employees Can Cool Down to Prevent Heat Illness

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President Obama has declared “climate change” the single “greatest threat” to America. The California Division of Occupational Safety and Health (Cal/OSHA) agrees. Effective May 1, 2015, the Cal/OSHA’s “heat illness prevention” (HIP) standard will require every employer to “allow and encourage” employees in outdoor places of employment to take five-minute “preventative cool-down rests…whenever they feel the need to do so to protect themselves from overheating.” Moreover, every agricultural employer must “ensure” 10-minute “preventative cool-down rest periods” every two hours when temperatures reach 95 degrees.

Cool-Down Rests vs. Cool-Down Rest Periods

The HIP standard requires every employer to “allow and encourage” all employees in outdoor places of employment to take preventative cool-down rests for a “minimum” of five minutes, “whenever they feel the need to do so to protect themselves from overheating.”1 The HIP standard doesn’t say how high the temperature must be for an employee to have the right to a cool-down rest. In fact, the wording of the HIP standard suggests that an employee can take as many cool-down rests as he wants and for as long as he wants. Evidently, the employee’s belief that he needs to protect himself from overheating doesn’t have to be reasonable.

Similarly, the HIP standard requires an agricultural employer to “ensure” that all employees in outdoor places of employment take a 10-minute “preventative cool-down rest period” every two hours when temperatures reach 95 degrees.2 But the HIP standard lets an agricultural employer require cool-down rest periods to be “concurrent” with any other mandatory meal or rest period during the first eight hours of work.3 Luckily, an employee doesn’t have to toil in 120-degree heat while he waits for his next cool-down rest period. That’s because the HIP standard lets him take a cool-down rest “whenever he feels the need to do so…”4

Turning Up the Heat on Employers

Like a heat wave, the law will burn an employer if he fails to provide a recovery period. Labor Code section 226.7 specifies that an employer may not require an employee to work during a “recovery period” pursuant to the “mandate” of an applicable Cal/OSHA “regulation, standard, or order.”5 For each workday that an employer requires an employee to work during a recovery period, he’ll owe the employee one hour of compensation at his regular rate of pay.6 The employee can get up to four years of premiums for missed recovery periods.7 That’s enough to put any employer in the hot seat.

But a cool-down rest isn’t a “recovery period.” The HIP standard only says that a “cool-down rest period” is the same thing as a “recovery period” under Section 226.7.8 Likewise, Section 226.7 says a “recovery period” is a “cooldown period…to prevent heat illness.”9 This might lead to perverse results. For instance, an employer who “allows and encourages,” but fails to “ensure,” a cool-down rest period when temperatures hit 95 degrees for even a second will owe an hour of pay. On the other hand, an employer who refuses to “allow” a cool-down rest when temperatures cause the thermometer to explode won’t owe a penny in back wages.

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 blistering: up to $7,000 per violation if the violation is “not…of a serious nature,”10 up to $25,000 per violation if the violation is “serious,”11 and up to a whopping $70,000 per violation if the violation is “willful or repeated.”12 For instance, an employer who fails to “allow or encourage” 10 employees to take just one five-minute cool-down rest on a 110-degree day – a serious violation at the very least – might owe $250,000 (i.e., $25,000 x 1 violation x 10 employees)!


  1. 8 Cal. Code Regs. §3395(d)(3). 

  2. 8 Cal. Code Regs. §3395(e)(6). 

  3. Id

  4. 8 Cal. Code Regs. §3395(d)(3). 

  5. Lab Code §226.7(b). 

  6. Lab Code §226.7(c). 

  7. Murphy v. Kenneth Cole, 40 Cal.4th 1094 (2007). 

  8. 8 Cal. Code Regs. §3395(e)(6). 

  9. Lab. Code §226.7(a). 

  10. Lab. Code §6427. 

  11. Lab. Code §6428. 

  12. 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.