How to Ride the Heat Wave Without a Wipeout

Q:        I just saw the seven day forecast and there is no relief from the heat in sight!  And, I just read an article that stated that there are real impacts for valley farmers.[1]  What can an employer do to keep  employees’ temperatures and  litigation risks down during this heat wave?

A:        Due to the extensive history of heat related deaths during our Central Valley summers, particularly in the agricultural industry, California has enacted strenuous regulations to ensure that employees are kept safe from the heat. Commonly known as the Cal/OSHA Heat Illness Prevention Standard, these regulations apply to all outdoor places of employment, while certain industries, including agriculture, construction, landscaping, oil/gas extraction, and transportation, are subject to additional requirements for “high heat procedures.”  (See 8 Cal. Code of Regs. § 3395.)

Pursuant to the Heat Illness Prevention Standard, shade is required to be present when the temperature exceeds 80 degrees Fahrenheit. The employer must have one or more areas with shade that can accommodate at least the number of employees on a break at any given time..  These shaded areas must either be open to the air or equipped with ventilation or cooling.  Furthermore the shaded areas must be located as close as practicable to the areas where employees are working.  You must not only allow, but encourage your employees to take “cool-down” breaks, for no less than 5 minutes, as often as needed.  (See 8 Cal. Code of Regs. § 3395 (d).)

When the temperature exceeds 95 degrees, additional procedures are required. (See 8 Cal. Code of Regs. § 3395(e).)  To that end, the employer must ensure that a communication system is set up, such as providing each employee with a cell phone, so that employees at each work site can contact a supervisor when necessary.  The employer must also observe employees for signs of heat illness and remind employees throughout the work shift to drink plenty of water.  One or more employees on each site must be authorized to call for medical services.  Also, the employer must ensure that your employees take a minimum ten minute preventative cool-down rest period every two hours.

Additionally, a new employee must be monitored very closely for the first 14 days of his or her employment, unless he or she has previously worked in similar outdoor conditions at least 10 of the past 30 days for 4 or more hours per day. (See 8 Cal. Code of Regs. § 3395(g).)  All employees must be trained on the risk and symptoms of heat illness, the employer’s procedures for complying with the Heat Illness Prevention Standard, the employer’s procedures for contacting medical services, and the importance of rest and water.  (See 8 Cal. Code of Regs. § 3395(h).)  Furthermore, the employer must have your company’s Heat Illness Prevention Plan available in English and Spanish at an employee’s request.

Lastly, don’t get burned by the new piece rate legislation. Remember, employees that are paid piece rate must be compensated for heat breaks.

As the Central Valley heats up, so does an employer’s risk of liability. Protect yourself with nothing less than 60 SPF, a wide brimmed hat and follow these procedures.  And, as always, contact your employment law attorneys with any questions – don’t let their pasty computer tans fool you – they know how to deal with the heat.



Work Warriors and Medical Inquiries.

Q:     Cleveland Cavalier forward Kevin Love was out for last night’s NBA finals game against the Golden State Warriors. In game 2, Harrison Barnes elbowed Love in the head and then Love appeared to suffer from concussion type symptoms.  Love has indicated that he is “frustrated” by the Cavalier’s decision to keep him out of the game.  As an employer, what can you do if you suspect an employee is prevented from performing based on a medical condition?  Is it legal to ask an employee about a suspected medical condition and seek medical certification that the employee is capable of performing his/her job?

A:     The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act answers this precise question.

 Generally, [an employer may ask] a disability-related inquiry or [require a] medical examination of an employee [. . . so long as it is] “job-related and consistent with business necessity” [and] an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”

Sometimes this standard may be met when an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.

In Kevin Love’s situation, it is likely playing against the Warriors with concussion like symptoms would pose a direct threat to himself thus making any inquiry into his medical condition reasonable. Then again, the Warriors are a direct threat to anybody they play.  Go Warriors.