Now Everybody's HIPP to It!

by walterlaw Cal/OSHA Issues Cal/OSHA Appeals Board Cal OSHA Litigation OSHA News Heat Illness

The definition of "outdoor place of employment" in California's heat illness regulation [https://www.dir.ca.gov/title8/3395.html] known as HIPP to those hip to it) was, depending on your viewpoint, affirmed last week by the California Court of Appeals First Circuit to protect workers reasonably expected to be exposed to outdoor heat, or expanded exponentially to reach employers who would never otherwise consider themselves to have outdoor work places.

The issue was narrow: Whether the Alameda-Contra Costa Transit District's (AC Transit's) un-air-conditioned buses are outdoor or indoor places of employment. But the effects of the Court's decision on California employers will be much broader. The case pitted Cal/OSHA, which argued that an un-air-conditioned bus is not "indoors" just because it has doors and windows, and can be even hotter inside than out; against the Cal/OSHA Appeals Board, which argued that a bus is a structure and that when you're inside, you're inside. Cal/OSHA seems to have won. The question has been sent back to the Appeals Board to re-consider its decision in light of the Court's holdings.

After discussing what may and may not be "outdoors", the Court of Appeal [http://www.courts.ca.gov/opinions/documents/A142799.PDF] sent the case back to the Cal/OSHA  Appeals Board to determine whether AC Transit's buses meet the now-approved definition of "outdoor" under the regulation. The decision is important to any employer whose employees, or any of them, have what may be deemed to be "... significant exposure to outdoor work... without the environmental protections indoor working environments can provide."

The Court held that the definition of "outdoors" for the regulation's purposes is "out of doors" or "not in a building." Easy enough for most purposes.

The Court also held that if an enclosure with a roof - such as a lean-to, a shed or for that matter a bus - does not provide sufficient environmental protections to be considered "indoor" (that is, water, cooling shade and rest areas) then it is "outdoor" and covered by the regulation.

By way of example the Court said that air-conditioned buses would not be deemed outdoor "... due to their inherent cooling attributes."

One nugget from the decision is the confirmation that if an employment is "outdoor," the regulation applies "continuously and prophylactically." What this means to you during autumn and winter is, as my Southern relatives would say, “untellin'”.

Yet another nugget which will set the stage for future appeals is the Court's approval of the Standards Board's comment that the regulation extends to outdoor work which is only "intermittent," another term that has yet to be defined.

So what outside activities will be considered "intermittent?" Are hotel attendants who pick up and lay down pool towels covered? Waitstaff who serve customers on patios? Real estate agents who show homes? Cart attendants at grocery and big box stores? Must employers whose employees take out the trash implement a full-on compliant HIPP?

If the work is intermittent the Standards Board says in language quoted by the Court "...it is the responsibility of the employer to determine if the time spent indoors satisfies the requirements for an adequate supply of water and shade for preventive recovery periods, thus leaving the employer with an obligation to provide training." [Emphasis added.]

It would appear from this language that even if the outdoor work is intermittent and adequate water, shade and rest periods are provided inside the workplace, California employers are still obligated to provide all of the training mandated at  § 3395(h) .

In practice then, if you find you are going to have to train on the regulation you may as well write and implement a full-on heat illness prevention program. It might save you a citation during Cal/OSHA’s next visit.

One final note: The Court side-stepped the most interesting (at least to us lawyers) issue raised in the appeal: Cal/OSHA argued that since it was deeply involved in writing the regulation it’s interpretations deserve deference over the Appeals Board which, after all, is only an adjudicatory body. Pretty cheeky and raised a passionate rebuttal from the Board. Instead the Court went over both their heads and relied strongly on the Standards Board’s discussions and opinions.