Written By Chris Dolan and Emile Davis
Today’s question come from Gabriel in Oakland: I work as the only parking lot attendant in the East Bay. This year, it has been over 100 degrees many times and I don’t see signs of it cooling any time soon. There used to be a booth where I could get out of the sun, but they took it down to make more spaces for cars. Now I work outside without any shade. There isn’t any water either. I told my manager, but he told me if I can’t handle it, he will find someone who will. Now, I don’t say anything, but it doesn’t seem right. Can they do that?
Hi Gabriel,
I am sorry to hear about your working conditions. As you have experienced, working outside, particularly in the heat, is difficult and can affect your health. In California, there are regulations administered by the California Occupational Safety and Health Administration (Cal/OSHA) which lay out the requirements which employers must maintain for the health of their workers who, like you, work outside. In particular, as it relates to working outside in the heat, California adopted the Maria Isabel Vasquez Jimenez heat illness standard-California Code of Regulations, Title 8, Section 3395.
The first thing you asked about was shade. Section 3395 requires the employer provide access to shade when the temperature exceeds 80 degrees Fahrenheit. The employer is required to maintain one or more areas with shade while employees are present. The shade can either be open to the air or an inside area with ventilation or cooling. There needs to be enough shade to accommodate all the employees on break at the same time. They also have to be able to sit normally, without having to be in physical contact with each other. The shady area needs to be located as close as possible to where the employees are working. Importantly, employees are allowed and encouraged to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating.
In your case, since you work alone, the old booth seems as though it would have been sufficient. However, since they took it down, it appears your employer is not in compliance with the regulation.
Since you are working in heat over 100 degrees, it is worth noting that in certain specific industries, there are additional High-heat procedures where the temperature reaches 95 degrees Fahrenheit. Those high heat procedures ensure there is effective communications with supervisors, observation of employees, pre-shift meetings to encourage hydration and inform employees of their rights to take a cool-down rest when necessary. There are even more procedures within the agricultural industry, but these high-heat procedures are required in the construction, landscaping and oil/gas extraction industries, as well as certain delivery drivers.
You also mentioned the lack of water at your worksite. The same regulations address the water issue. It is required that employees have access to fresh, pure, cool drinking water. It must be provided free of charge by the employer. It should be located close to where the employees work. However, if there is not suitable plumbing, the employer can provide the water, at the beginning of the shift, or incrementally throughout the day. But, they need to provide enough for each worker to have one quart of water each hour of their shift. It seems they are not doing that for your worksite.
You asked if they can get away with their failure to provide shade or water. That is an excellent question. You opposed the conduct and were seemingly told that if you didn’t like it, they would find a different employee instead. If your employer terminated you because you asked for shade and water as they are required to provide, that would be a form of retaliation. Section 3395 also requires the company to train employees of the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid as well as the employees’ right to exercise their rights under this standard without retaliation.
It is generally a good idea to make any requests to your employer in writing. If you find that you are retaliated against for making a complaint regarding workplace safety, whether under this section, or any other, that you contact an experienced employment lawyer such as the Dolan Law Firm.
