The purpose of the BACBP is to help reduce air pollution and traffic congestion by decreasing single-occupant commute trips to Bay Area worksites, while also providing tax saving benefits for employees and employers.2

The BACBP is administered by a partnership between the Air District and the Metropolitan Transportation Commission (MTC)(collectively “Air District/MTC”).

Additional information and resources can be found on the BACBP website, including an Employer Guide, Program Overview and Frequently Asked Questions.

Covered Employers

The BACBP applies to all public, private and non-profit employers in the Bay Area with 50 or more “full-time” employees within the geographic boundaries of the Bay Area Air Quality Management District, including:3

• Alameda;
• Contra Costa;
• Marin;
• Napa;
• San Francisco;
• San Mateo;
• Santa Clara;
• Western portion of Solano, including Fairfield and points west; and
• Southern portion of Sonoma, including Windsor and points south.

A “full-time” employee is defined as an employee who works an average of at least 30 hours per week during the previous calendar month within the geographic boundaries of the Air District; it excludes seasonal/temporary employees as defined under the BACBP and independent contractors who don't receive a W-2 from the employer.4 The employee count is determined by calculating the average number of full-time employees (as defined) in the Bay Area carried on the employer's payroll over the course of the most recent three-month period.5

The employee count is based on all Bay Area worksites combined — even if the employer does not have 50 or more employees at any single site. Employers with multiple worksites, offices, or branches may have several locations that are subject to the BACBP. Covered employers with multiple sites must provide commuter benefits at all their Bay Area worksites, but can choose to provide different benefits at different sites.

If an employer reaches the 50 or more full-time employee threshold after the BACBP has gone into effect, the employer will have six months from the date that it becomes subject to the program to register, select a commuter benefit option and comply with the program.6

Covered Employees

Employers must provide a commuter benefit to all employees who work at least 20 hours or more per week, exclusing field or seasonal/temporary employees:

• A field employee is an employee whose primary job responsibilities are at temporary job sites, and who does not report to the employer's home office or other permanent job location; and
• A seasonal/temporary employee is an employee who works 120 or fewer days per year for the employer.7

Temporary Employment Agencies

Although the BACBP doesn't apply to temporary employees, it does apply to temporary employment agencies who have 50 or more full-time employees.

If a temporary agency is subject to the BACBP, then all employees of the temporary agency who work on the temporary agency payroll for 120 or more days per year and an average of 20 or more hours per week are eligible to receive a commuter benefit.

As discussed above, field employees are not covered by the BACBP. Thus, employees of a temporary agency who are assigned to work at a job site that is temporary in nature (e.g., a construction site, a well-drilling business, a painting contractor) are not covered, whereas employees of a temporary agency who are assigned to work at a job site that is permanent in nature (e.g., a law firm, accounting firm, or corporate office) are covered.8

Commuter Benefit Options

Covered employers must provide covered employees with one (or more) of the following five commuter benefit options :

• Option 1: Pre-Tax Benefit: Allow employees to exclude their transit or vanpooling expenses from taxable income, up to the maximum per month allowed by the federal tax code (see the current IRS tax code for any updates or changes).9 This option can reduce payroll and/or income taxes for both employers and employees.10
• Option 2: Employer-Provided Transit or Vanpool Subsidy: Provide a monthly subsidy (up to $75 per month) to cover the cost of commuting via transit (defined as bus, rail or ferry service operated by a public agency or private entity) or vanpool. Employers do not pay payroll taxes on the amount of the subsidy, and employees do not pay income taxes or payroll taxes on the amount of the subsidy, up to the IRS limit.11
• Option 3: Employer-Provided Transit: Provide free or low-cost bus, shuttle or vanpool service operated by or for the employer. “Low cost” for short-distance transportation, such as a shuttle from a nearby transit station to the worksite, means the employer charges a maximum of $2 per employee for a one-way trip. For long-distance transportation, such as buses or van service from the employee's home community to the worksite, the employer may charge a one-way fare of no more than $0.20 per mile times the one-way trip distance.
• Option 4: Alternative Commuter Benefit: Provide an alternative commuter benefit that’s as effective in reducing single-occupancy commute trips as the above options — such as a limited teleworking schedule or a compressed workweek. As stated in the Employer Guide, the Air District must evaluate and approve any alternative commuter benefit proposed by the employer. The employer may also elect to offer a subsidy or incentive for employees who use other types of alternative commute modes, such as carpooling, biking, walking or telecommuting. Under Option 4, the Air District has drafted “pre-approved” alternatives that are categorized by a selection of “primary” and “secondary” measures (see table below Option 4C for measures provided by the BACBP that are detailed in the Employer Guide):
• Option 4A: Employer selects one Primary Measure plus at least two Secondary Measures from the list of measures in the table below.
• Option 4B: Employer selects at least four Secondary Measures from the list of measures in the table below.
• Option 4C: In addition to this menu approach, employers may propose their own alternative commuter benefit. For Option 4C, the Air District must evaluate the proposed alternative benefit to determine that it would be as effective as Option 1, 2 or 3 in reducing single occupant vehicle trips (and/or vehicle emissions) to the worksite. During the registration process, an employer selecting Option 4C must describe its proposed benefit and explain why the proposed alternative benefit would be appropriate and effective at its worksite(s).12

 

Primary Measures

Carpool Subsidy ($3/day that employee carpools) Bicycle Subsidy ($20/month) Limited Telework Schedule Compressed Workweek Electric Vehicle Implementation (fleet changeover, EV car share for employees, charging stations, etc.) Parking Cash-Out (for employer's who are subject to California's statewide Parking Cash-Out law or if the employer opts to offer Parking Cash-Out even if it is not subject to the law)

Secondary Measures

Preferred parking for carpools Provide an employer-specific carpool match service Employer-provided membership in a car sharing program Participation in an emergency/guaranteed ride home program Secure, on-site bicycle parking Showers and lockers for employees who bike or walk Employer-sponsored Bike Share Program Employee commuting awards program (ex: bonus vacation day, free lunch, gift card, etc.) On-site amenity (ATM, café, catered lunch, on-site childcare, dry cleaning, etc.) Provision of a shared mechanism for viewing real time commuting info (ex: flat screen monitor in lobby) Lunchtime shuttle Transit Subsidy (at least $1/day but less than $3/day)

For more information, see the Option 4 Guide.

• Option 5: Telework Policy: Offer a company-wide telework benefit option allowing a majority of employees to telework at least one day or more per week. For an employer to be pre-approved to comply under Option 5, the employer must offer a telework benefit option to the majority of employees and not remove existing benefits being offered to employees whose duties cannot be done outside the worksite.13

• Under Option 4, "limited telework schedule" is one of the primary measure options. Employers do not need to offer it to all employees for one or more days per week because they are also implementing other commuter benefit measures, in addition to limited telework policy to meet the Option 4 requirements. In contrast, under Option 5, employers must have a policy allowing teleworking for one or more days per week for all employees whose assignments can be performed remotely because Option 5's sole benefit is teleworking. For more information, see the Option 4 Guide and Option 5 Guide.

There are various third-party benefit providers/vendors that will provide commuter benefit services to employers, a list of which are provided through the Air District/MTC.

Employer Responsibilities

To comply with the BACBP, covered employers must:

• Select a pre-approved commuter benefits option or propose an alternative.
• Designate a commuter benefits coordinator, which is simply the person who will complete the registration form and report to the Air District/MTC.
• Register through 511.org. After initially registering, employers must annually update and verify their registration information. You will need the following information:
• Name and contact information for the commuter benefits coordinator;
• Contact information for an alternative contact person;
• Number of full-time employees and covered employees at each Bay Area worksite;
• The commuter benefit option that the employer will provide; and
• The means used to notify employees about the commuter benefit and how to apply for the benefit.14
• Notify all covered employees that the employer is subject to the requirements of the BACBP and of the commuter benefit options offered. Employers must indicate the method(s) used to notify employees as part of the registration process. Employee notification is required at the following times:
• When the commuter benefit is first made available;
• A minimum of once per year thereafter, in conjunction with the employer's annual registration update; and
• On an on-going basis, for newly hired employees as part of the explanation of employee benefits provided during new employee orientation.15
• Distribute the benefit, including setting up pre-tax deductions for Option 1, and have employees fill out an enrollment form. Employers that need a time extension to offer commuter benefits should contact the Air District.
• Maintain records to document how and when employees were notified about the commuter benefit(s).
• Complete the annual registration update.
• Keep records of your implementation for at least three years.16

Coordination with Local Commuter Benefit Ordinances

The BACBP is modeled after local ordinances from several Bay Area cities, including San Francisco, the San Francsico International Airport, Berkeley and Richmond. The regional BACBP is similar to the local commuter benefits programs, with the main difference being that the local programs apply to smaller businesses.

As stated in the Employer Guide, all employers subject to the BACBP should, to streamline compliance, report to the BACBP, which will verify employer compliance and provide verification to the local jurisdictions. Here is a table on the local commuter benefits programs:17

Recordkeeping Requirements

Employers must maintain records, files, and documentation to establish compliance with the BACBP’s requirements for a period of three years and make them available to the Air District/MTC upon request.18

Enforcement

The Air District is authorized to enforce its regulations, including the BACBP, pursuant to the California Health and Safety Code, section 65081. BACBP violations are subject to the civil penalty provisions for enforcement of air pollution control laws in the California Health and Safety Code beginning at section 42402.19

As stated in the Employer Guide, although the Air District enforcement procedure strives to work cooperatively with regulated entities, initial violations may still require that employers take corrective actions — and failure to comply with the corrective actions may result in a financial penalty, which will be evaluated on a case-by-case basis.20

Further Resources

You can find out more information regarding the BACBP on its webpage, including:

• Frequently Asked Questions;
• Program at a Glance;
• Employer Guide;
• Benefit Providers;
• Fact Sheet;
• Sample Poster; and
• A Sample Employee Notification.

1. Air District Regulation 14, Rule 1: Bay Area Commuter Benefits Program

2. Air District Regulation 14, Rule 1, 14-1-101; Bay Area Commuter Benefits Program, Frequently Asked Questions (FAQ), pg. 1 (Jan. 3, 2023)

3. Air District Regulation 14, Rule 1, 14-1-102; FAQ, pg. 1

4. Air District Regulation 14, Rule 1, 14-1-209; FAQ, pg. 3

5. Air District Regulation 14, Rule 1, 14-1-402; Bay Area Commuter Benefit Program: Provisions and Requirements section, BACBP Employer Guide

6. Bay Area Commuter Benefit Program: Provisions and Requirements section, BACBP Employer Guide

7. Air District Regulation 14, Rule 1, 14-1-207, 210; FAQ, pg. 3

8. FAQ, pg. 3

9. IRS Code 132(f)

10. Air District Regulation 14, Rule 1, 14-1-301; FAQ, pg. 8

11. Air District Regulation 14, Rule 1, 14-1-301; Bay Area Commuter Benefit Program: Option 2: Employer-Provided Subsidy section, BACBP Employer Guide

12. Air District Regulation 14, Rule 1, 14-1-302; Bay Area Commuter Benefit Program: Option 4: Alternative Commuter Benefit section, BACBP Employer Guide

13. Bay Area Commuter Benefit Program: Option 5: Telework section, BACBP Employer Guide; also see Option 5 Guide (January 3, 2023)

14. Air District Regulation 14, Rule 1, 14-1-403, 14-1-404, 14-1-406

15. Air District Regulation 14, Rule 1, 14-1-405; Bay Area Commuter Benefit Program: Getting Started section through Getting Started: Option 5: Telework section, BACBP Employer Guide

16. Air District Regulation 14, Rule 1, 14-1-406; 14-1-501

17. Bay Area Commuter Benefit Program: Coordination with Local Commuter Benefit Ordinances section, BACBP Employer Guide

18. Air District Regulation 14, Rule 1, 14-1-501; FAQ, pg. 2

19. Air District Regulation 14, Rule 1, 14-1-409

20. Bay Area Commuter Benefit Program: Enforcement section, BACBP Employer Guide