Last week, a California Appeals Court answered a narrow question as to whether the interior of a non-air-conditioned bus can be deemed an “outdoor place of employment” for the purposes of the California’s heat illness prevention regulations. The Appeals Court, which agreed with the decision of the lower court, held that, “outdoor” is defined as ‘out of doors’ or ‘not in a building" and that if “an enclosure or structure does not provide sufficient environmental protections to be considered ‘indoor’ then it is ‘outdoor.’”

As most employers know, under California Code of Regulation, title 8, section 3395, employers with outdoor places of employment are required to put in writing and implement an effective heat illness prevention plan, which includes, but is not limited to, procedures for providing sufficient water, access to shade, and high-heat. In November 2007, Cal OSHA cited AC Transit, which operates buses throughout Alameda County and adjoining areas, for violation of heat illness prevention laws with respect to the operation of non-air-conditioned buses for (1) failure to supply adequate drinking water to drivers; (2) failure to make shade continuously available for drivers; and (3) failure to develop heat illness procedures and related training for employees and supervisors. During relevant timeframes, AC Transit employed between 1,200 and 1,900 drivers and operated 695 buses, only 20 percent of which were air-conditioned.

AC Transit appealed the citation, and an administrative hearing before an administrative law judge (“ALJ”) was subsequently held over the course of several days. During the hearing, several bus drivers testified that it was normally hotter inside the buses than outside during the daytime, even when the exterior temperature was in the 70s. Drivers further reported that some of the non-air-conditioned buses had issues with ventilation and engine compartments that radiated heat into the bus interior. One employee testified that he had measured temperatures between 97 and 102 degrees immediately behind the driver seats on four buses during a heat wave with outside temperatures between 97 and 102 degrees. AC Transit did not counter any of these claims; rather, AC Transit only argued that they were not subject to heat illness protection laws.

The ALJ concluded that “outdoor places of employment” did not include the interiors of municipal transit buses and dismissed the citations. Cal OSHA filed a petition for reconsideration with the Cal OSHA Appeals Board, who agreed with the ALJ. Not to be deterred, Cal OSHA filed another appeal with the Alameda County Superior Court, who ruled against the ALJ and the Appeals Board. The Superior Court ruled that there is no single, common meaning of “outdoor” and, considering the regulatory history of the heat illness prevention laws, concluded that the “[heat illness prevention] regulations [were intended] to protect employees who did not have ‘the environmental protections indoor working environment can provide.’”

The Appellate Court, agreeing with the Superior Court, also turned to the legislative history of the heat illness protection laws. Specifically, the Court noted that Cal OSHA stated in the rulemaking process that there are circumstances where “indoor structures” may actually be hotter than the environment outside of them because of heating by the sun and conditions inside like limited air circulation and/or lack of insulation. Further, the Court noted that Cal OSHA itself stated in the rulemaking process, “that it is clear the [heat illness prevention] standard is intended to protect employees from heat illness resulting from exposure to outdoor environmental risk factors, and therefore [structures] that do not significantly reduce the net effect of the environmental risk factors that exist immediately outside should be considered outdoor workplaces.” (italics added). Cal OSHA also stated in the rule making process that, “[Heat illness protection] standard[s] would apply to non-air-conditioned work vehicles used for extended travel during periods of extreme heat. Employees traveling in these conditions are entitled to all of the protections provided by the standard including access to shade.” Lastly, the Court justified expanding definition of the term “outdoor” by citing to a California Supreme Court decision which stated, “where a word of common usage has more than one meaning, the one which will best attain the purposes of the [regulation] should be adopted, even though the ordinary meaning of the word is thereby enlarged.”

The Court remanded the case back to the Cal OSHA Appeals Board to determine whether AC Transit’s non-air-conditioned buses are “outdoor” places of employment under the heat illness protection regulations and whether the buses at issue “significantly reduce the net effect of the environment risk factors that exist immediately outside.”


In its legal reasoning, the Court noted legislative history of the heat illness regulations that is applicable to the agriculture industry. Specifically, “[Cal OSHA] recognizes packing sheds and partial or temporary structures, such as tents, lean-tos, and structures with one or more open sides, can be either indoor or outdoor workplaces depending on the circumstances.” While this decision here only applies to the interior of non-air-conditioned buses, employers with structures that are not air-conditioned and are subject to the outdoor elements should be cognizant and take steps to ensure that a heat illness prevention plan is in place. Further, as reported here earlier, Cal OSHA is required to propose to the Occupational Safety and Health Standards Board a heat illness and injury prevention standard applicable to “workers working in indoor places of employment” by January 1, 2019. If you have questions about your company’s Heat Illness Prevention Program, contact the experts at The Saqui Law Group.

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