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AB-1031 Employee rest periods: employees providing direct support to individuals with intellectual and developmental disabilities.(2023-2024)

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Date Published: 03/23/2023 09:00 PM
AB1031:v98#DOCUMENT

Amended  IN  Assembly  March 23, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 1031

Introduced by Assembly Member Blanca Rubio

February 15, 2023

An act to add Section 226.77 to the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1031, as amended, Blanca Rubio. Employee rest periods. periods: employees providing direct support to individuals with intellectual and developmental disabilities.
Existing law, including statutory law and wage orders issued by the Industrial Welfare Commission, with certain exceptions, requires an employer to provide employees with rest breaks during working hours, as specified. Existing law requires that employees be relieved of all duties during rest periods. Existing law requires the employer to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a meal or rest or recovery period is not provided.
This bill would exempt from the requirement that an employee be relieved of all duties an employee providing direct support to an individual with an intellectual or developmental disability in an integrated community setting, under prescribed circumstances. The bill would require, if a nonexempt employee is affirmatively required to interrupt their rest period to respond to the needs of a consumer, that another rest period be authorized and permitted reasonably promptly after the circumstances that led to the interruption have passed. The bill would require the employer, if circumstances do not allow the employee to take a rest period, to pay the employee one hour of pay at the employee’s regular rate of pay for the rest period that was not provided.
This bill would make related legislative findings and declarations, and would express the intent of the Legislature to enact legislation to permit direct support staff providing services and supports in community settings to maintain general supervision of their consumers during rest periods, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) Industrial Welfare Commission Orders No. 4-2001 Regulating Wages, Hours and Working Conditions in the Professional, Technical, Clerical, Mechanical and Similar Occupations, Occupations and No. 5-2001 Regulating Wages, Hours and Working Conditions in the Public Housekeeper Industry, and No. 15-2001 Regulating Wages, Hours and Working Conditions in the Household Occupations Industry govern employee rest periods for community-based providers of services to individuals with intellectual and developmental disabilities. Section 12 of these orders, as construed in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, requires that nonexempt employees be relieved of all duties during rest periods, including the duty to remain on call or carry radios or other forms of instant communication, or both.
(2) Section 12 of Wage Order No. 5-2001 provides that employees of 24-hour residential care facilities for elderly, blind, or developmentally disabled individuals may, without penalty, require an employee to remain on the premises and maintain general supervision of residents during rest periods if the employee is in sole charge of residents. Another rest period must be authorized and permitted by the employer when an employee is affirmatively required to interrupt their break to respond to the needs of residents.
(3) As providers of direct support and services to individuals with intellectual and developmental disabilities in varied community settings, direct support professionals play a key role in protecting the health and welfare of the individuals they support.
(4) Because of the vicissitudes of interactions with the public that are attendant to community integration, as well as possible health conditions requiring immediate intervention, it is necessary to enable an immediate and effective response to any emergencies or health and safety risks that may occur for supported individuals with intellectual and developmental disabilities.
(5) Current law as construed creates potentially significant health and safety risks to individuals with intellectual and developmental disabilities who receive supports in community settings, where direct support staff have no backup staff to maintain general supervision of the individuals requiring support during mandated rest break periods.
(6) By hindering the general supervision of potentially vulnerable clients that is necessary for direct support professionals to respond effectively to serious emergencies or health and safety risks, mandating rest periods for direct support professionals with no ability to maintain general supervision would prevent individuals with intellectual and developmental disabilities from being fully integrated into community settings with appropriate safeguards in place.
(7) To promote the health and well-being of individuals with intellectual and developmental disabilities while ensuring opportunities for integration in their communities, it is necessary that direct support staff providing services and supports in community settings be required to maintain general supervision of their consumers during rest periods pursuant to the industry’s longstanding best practices.
(b) Therefore, it is the intent of the Legislature to do both of the following:
(1) Promote the health and well-being of individuals with intellectual and developmental disabilities while ensuring opportunities for integration in their communities.
(2) Enact legislation to permit necessary support staff providing services and supports in community settings to maintain general supervision of their consumers during rest periods pursuant to the industry’s longstanding best practices.

SEC. 2.

 Section 226.77 is added to the Labor Code, immediately following Section 226.75, to read:

226.77.
 (a) Notwithstanding any provision of this code or of Industrial Welfare Commission Wage Order No. 4-2001 or No. 5-2001, the requirement that employees be relieved of all duties during rest periods shall not apply with respect to an employee providing direct support to an individual with an intellectual or developmental disability in an integrated community setting to the extent that the employee providing direct support may be required to maintain general supervision of the consumer during rest periods if the employee is in sole charge of the consumer and may be required to respond to emergencies or risks to the health and safety of the consumer.
(b) If a nonexempt employee covered by this section is affirmatively required to interrupt their rest period to respond to the needs of a consumer, another rest period shall be authorized and permitted reasonably promptly after the circumstances that led to the interruption have passed. If circumstances do not allow for the employee to take such a rest period, the employer shall pay the employee one hour of pay at the employee’s regular rate of pay for the rest period that was not provided.
(c) An employer that provides community-based services and supports to individuals with intellectual and developmental disabilities shall include, as part of the itemized statement that the employer is required to furnish pursuant to subdivision (a) of Section 226, the total hours or pay owed to an employee, as described in subdivision (a), on account of a rest period that was not authorized or permitted for the reasons described in subdivision (b) or any other reason.
(d) For purposes of this section, the following definitions apply:
(1) “Employer” means a provider of services vendored by one or more regional centers under the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code).
(2) “Emergency or risks to the health and safety of a consumer” means a situation or event requiring prompt or immediate intervention to prevent or respond to an incident that could cause harm to the consumer or the community.
(e) This section shall apply only to employees subject to Industrial Welfare Commission Wage Order No. 4-2001 or No. 5-2001.
(f) This section shall not apply to existing cases filed before the effective date of this section.