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Copyright 2025 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
FEATURED NEWS
2025-04-01T05:00:00Z
NewsHuman Resource ManagementHuman Resource ManagementDisabilities and ADAIn-Depth ArticleHR ManagementEnglishHuman ResourcesIndustry NewsSafety & HealthGeneral Industry SafetyHR GeneralistHeavy Equipment and VehiclesHeavy Equipment and VehiclesFocus AreaDisabilities and ADAUSA
Case helps illustrate ADA’s ‘direct threat’ meaning
As a bucket foreperson, Larry helped maintain and fix electrical facilities in the field. The job required Larry to climb up poles, work with live (potentially deadly) powerlines, and operate a bucket truck, often in extreme weather conditions and at unusual — sometimes long — hours. The company relied on two teams to perform these tasks. The bucket foreperson supervised the other linemen and always had to stay alert. The company also required bucket truck operators to possess a commercial driver’s license.
After working for the company for almost 30 years, Larry began having seizures. The seizures could last as short as a few seconds or as long as 90 seconds. During a seizure, Larry would be mentally altered and not know what was happening around him. There were no warning signs about when a seizure might occur; they were unpredictable.
In March 2020, an exhausted Larry had been working all night repairing lines with another employee. While driving the truck, Larry suffered a seizure and swerved a bit out of his lane. The other employee in the truck noticed the seizure and reported the incident to their supervisor. The supervisor told Larry to see a doctor. Larry’s doctor cleared him to return to work.
While repairing an elevated power line that August, one of Larry’s coworkers went up in the bucket. Larry and the other employees remained on the ground. From the elevated bucket, the coworker spotted Larry lying face down on the ground and feared that he had died. This coworker told the others to place a “mayday call.” An ambulance took Larry to the emergency room, where doctors diagnosed him with heat exhaustion. They also released him to return to work the same day.
HR’s concerns
Connie, the company’s HR VP put Larry on leave under the Family and Medical Leave Act (FMLA). Given the two incidents within months of each other, Connie worried that Larry’s seizures could cause a catastrophic event and get someone killed. Connie asked a private physician who served as the company’s medical review officer, to evaluate Larry. Larry’s doctor also completed the paperwork that took him out of work for the short term.
The doctors released Larry to work, but with limited hours. He also couldn’t operate a vehicle or powered equipment for at least five months. Later, the doctors removed the driving restriction but didn’t remove the limited hours.
Connie decided that a bucket foreperson’s ability to work extended hours on short notice was essential to the job. So, she investigated whether the company could transfer Larry to a different role. Larry, however, didn’t qualify for any open positions. The company told Larry that they couldn’t accommodate his condition and that he could retire or be let go. He chose retirement, but sued, claiming that the company discriminated against him because of his condition and that he didn’t pose a direct threat.
Employer wins direct threat argument
Because of the hours and hazards of a bucket foreperson, along with the doctors’ input, the court found in favor of the employer and agreed that Larry qualified as a direct threat of harm to himself and others.
Smith v. Newport Utilities, Sixth Circuit Court of Appeals, No. 24-5502, February 27, 2025.
ADA’s direct threat
The federal Americans with Disabilities Act (ADA) protects employees who are qualified individuals; if they can perform, with or without reasonable accommodation, the job’s essential functions.
Because employees who are considered a direct threat of harm to themselves or others aren’t “qualified individuals” under this definition, the ADA does not protect them.
The ADA defines a “direct threat” as “a significant risk to the health or safety of others that can’t be eliminated by reasonable accommodation.” Employers must consider four factors when deciding whether a significant risk exists:
- The duration of the risk,
- The nature and severity of the potential harm,
- The likelihood that this harm will arise, and
- The imminence of the harm.
Employers also should engage in an individualized direct-threat assessment and base their conclusions on reasonable medical judgment, the best available objective evidence, or both.
Key to remember: Employers can take action against an employee who poses a direct threat, but they must be able to show the direct threat.
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RECENT INDUSTRY HIGHLIGHTS
2025-04-01T05:00:00Z
NewsHazardous WasteIndustry NewsWaste/HazWasteWasteEnvironmentalIn-Depth ArticleEnglishFocus AreaUSA
The cost of cutting corners: What a toxic fire teaches us about waste management
Are you storing and disposing of hazardous waste correctly or sitting on disaster? Hazardous waste storage is not just a regulatory headache – it is a time bomb for the environment and your company’s bottom line. A disaster in east London, England, is an ongoing issue for nearby residents that highlights the importance of hazardous waste management and why employers must take it seriously.
What happened?
Originally intended for construction waste disposal, the site eventually turned into a dumping ground for hazardous industrial materials. Investigations found plastics, asbestos, industrial chemicals, and carcinogenic substances illegally dumped, creating an environmental and public health hazard. These materials fuel the fires, continuously releasing toxic smoke into the air. Residents have reported respiratory problems, skin irritation, and other health issues while authorities struggle to contain the situation. Even though this incident occurred in London, we can learn plenty of valuable lessons from the incident. Here’s how employers can take proactive measures to ensure compliance, protect workers, and prevent environmental harm:
1. Implement a robust hazardous waste management plan
A hazardous waste management plan should:
- Include waste classifications (reactive, corrosive, etc.) and an inventory of all hazardous materials used and generated.
- Ensure all storage and handling procedures, including labeling, segregation of incompatible waste, spill prevention, and containment measures, are followed.
- Document all waste accumulation and disposal methods. Specify the storage time limits for waste and the methods used for its disposal, such as incineration, recycling, or third-party handling.
- Provide information on personal protective equipment (PPE) requirements, emergency contact information, reporting procedures, and an evacuation plan in case of a spill.
2. Train employees on hazardous waste handling
Train personnel on their roles and responsibilities when handling hazardous waste. Training should include:
- Initial and refresher training that complies with the Resource Conservation and Recovery Act (RCRA) and state laws.
- Identifying unsafe practices and reporting potential violations.
3. Conduct routine inspections and audits
- Perform internal audits to ensure compliance with RCRA regulations.
- Schedule third-party audits to identify risks and areas of improvement.
- Create a corrective action plan for any violations or inefficiencies discovered during audits.
4. Use licensed and certified waste disposal services
The primary reason behind illegal waste dumping is financial. We all know it is not cheap to dispose of hazardous waste, but waste generators are responsible for their waste from “cradle to grave.”
- Conduct due diligence to verify disposal methods to prevent third-party illegal dumping.
- Maintain records of manifest, disposal certificate, and compliance documentation.
5. Secure and label waste properly
- Labels should include “hazardous waste” clearly visible on the container, generator information, accumulation start date, proper shipping name, and waste identification.
- Store hazardous waste in compatible containers to prevent leaks or spills.
6. Reduce hazardous waste by using safer alternatives
One of the most effective ways to prevent hazardous waste incidents is to reduce reliance on them in the first place. By switching to safer alternatives, employers can lower their risk of exposure. Industries now offer eco-friendly coatings, adhesives, and cleaning agents that perform well without all the side effects. Safer alternatives also reduce compliance costs by lowering the burdens for hazardous waste disposal.
The disaster near London is a stark reminder of the consequences of negligent hazardous waste management. Businesses that cut corners on waste disposal risk legal penalties and contribute to long-term environmental and public health damage.
Keys to remember: Employers can protect their workforce, comply with regulations, and prevent environmental disasters by adopting proactive waste management strategies.
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2025-04-01T05:00:00Z
NewsIndustry NewsFleet SafetyCMV Parts and MaintenanceWarning devicesFire extinguishers - Motor CarrierIn-Depth ArticleFocus AreaEnglishTransportationUSA
The safety trifecta: 3 essential items for every CMV
Thousands of commercial truck and bus drivers are cited each year for failing to carry essential emergency equipment, leaving them and the traveling public at risk.
Federal regulations require all commercial motor vehicle (CMV) drivers to carry three pieces of equipment that can be critical in an emergency. Review the following to ensure your drivers have what it takes to properly respond in an emergency situation. These items must be checked during each day’s pre- and post-trip inspection and replaced when necessary.
1. Fire extinguisher
Every power unit must have at least one properly maintained fire extinguisher. An extinguisher can be critical for controlling a small fire while emergency services are en route. To comply with DOT regulations, the extinguisher must:
- Have the proper rating. The weight of the extinguisher is not as important as the Underwriters’ Laboratories (UL) rating. If the vehicle is not transporting hazardous materials in an amount requiring placarding, the extinguisher must be rated at 5 B:C or more, or there can be two extinguishers rated at 4 B:C or more. For placarded loads, there must be at least one extinguisher rated at 10 B:C or more.
- Be properly marked. Each extinguisher must be labeled or marked by the manufacturer with its UL rating.
- Have a charge indicator showing “full.” Each extinguisher must have a visual indicator of whether it’s fully charged, and must be full enough to be useful for a fire.
- Be properly mounted. Extinguishers must be securely mounted so they cannot slide, roll, or bounce (vertically).
- Be readily available. The fire extinguisher must be located in a spot that is readily accessible for use. If inside a cabinet, the driver must be able to access it rapidly.
Though not required by the DOT, an annual inspection by qualified personnel is highly recommended. Replace extinguishers once they have reached the manufacturer’s recommended lifespan. In addition, train drivers on when and how to properly use an extinguisher.
2. Reflective triangles or flares
Every CMV must be equipped with devices that can be placed around the vehicle when stopped on the roadway or shoulder, such as due to a crash or disablement, to warn other motorists to steer clear. Ensure that drivers carry at least:
- Three DOT-compliant reflective triangles,
- Six solid-fuel flares (also known as fusees), or
- Three liquid-burning flares.
These devices must be placed within 10 minutes of a stop, and in the locations specified in 49 CFR 392.22.
Make sure drivers know how to inspect and condition these devices, where to place them, and when they need to be replaced.
Are LED lights an option instead? The Federal Motor Carrier Safety Administration (FMCSA) currently allows one specific brand of LED-based flare: “Pi-Lit” flares from Pi Variables. This is based on a temporary exemption currently in place until June 2028, as published in the Federal Register on June 22, 2023. No other LED-based warning devices may be used in place of the required triangles or flares at this time.
3. Spare fuses
Fuses play a critical role in safeguarding a vehicle’s electrical system from overloads or short circuits. To ensure that FMCSA-required electrical equipment remains operational, drivers must carry at least one spare fuse for each type or size of fuse needed for that equipment.
In other words, if any component on a power unit relies on a fuse to operate and that component is required by the FMCSA (such as lights required under 393.11), then the driver must carry at least one spare fuse of the same type. If the fuse blows and the component stops working, then the driver is expected to replace the fuse before driving further.
Don’t add to the statistics
Violations of the emergency-equipment rules in 49 CFR 393.95 rank high on the list of common roadside violations (see below). Failing to carry any of the required items — or allowing CMV operations with them — can carry a hefty fine. More important, however, are the potential consequences of having an en-route emergency without having the required equipment. Those consequences include unnecessary downtime, equipment destruction by fire, or even injuries or fatalities.
| Rule | Description | Violations |
| 393.95(a) | Discharged, unsecured, improperly rated, or missing fire extinguisher | 101,514 |
| 393.95(f) | Missing or improper warning devices | 61,856 |
| 393.95(a)(4) | Unsecured fire extinguisher | 21,725 |
| 393.95(b) | Missing spare fuse(s) | 8,898 |
| 393.95(a)(4) | Fire extinguisher not readily accessible | 3,043 |
| 393.95(a)(3) | No visual indicator on fire extinguisher | 1,419 |
| 393.95(a)(1) | Wrong type of fire extinguisher for hazardous materials | 504 |
| 393.95(a)(2) | No label or marking on fire extinguisher | 147 |
Key to remember: All CMVs must be equipped with three key pieces of emergency equipment: fire extinguishers, triangles or flares, and spare fuses. Make sure they are in place and ready for use at all times.
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2025-04-01T05:00:00Z
NewsHeat and Cold ExposureSafety & HealthChange NoticesChange NoticeGeneral Industry SafetyNevadaEnglishHeat StressFocus Area
Nevada adopts heat illness prevention rule
Effective date: April 29, 2025
This applies to: Employers in Nevada with more than 10 employees who have potential heat exposure in indoor and outdoor settings. NOTE: Certain provisions of the regulation do not apply to employees who work indoors in climate-controlled environments, including those in vehicles with functioning climate control systems.
Description of change: Affected businesses must implement:
- A written job hazard analysis that identifies all working conditions with the potential to cause heat illness. The analysis is to focus on job classifications where the majority of employees have exposure for more than 30 minutes of any given hour, excluding break periods and must be performed:
- Before a task is performed for the first time by an employee, or
- When a task or job materially changes.
- A written safety program that identifies provisions for:
- Potable water, rest breaks, and means of cooling workers;
- Heat and temperature monitoring by a designated person;
- Work processes that prevent activities that generate additional heat or humidity;
- Emergency response procedures; and
- Employee training that includes the recognition of heat hazards and procedures to minimize those hazards.
The written safety program must also designate a person to perform hazard analysis, monitor heat, contact emergency services in the event of a heat-related emergency, and carry out provisions of the program.
The rule prohibits a collective bargaining agreement from reducing or waiving the regulatory requirements and does not relieve an employer from collective bargaining agreements.
View related state info: Heat Injury and Illness Prevention - Nevada
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2025-03-28T05:00:00Z
NewsIndustry NewsVehicle TitlingInternational Registration Plan (IRP)Focus AreaIn-Depth ArticleFleet OperationsEnglishTransportationRegistration and Permits - Motor CarrierUSA
Expert Insights: Considering your options for apportioned registration
For companies with only one facility, choosing a base jurisdiction for apportioned vehicle registration is clear. The home state will be the only option. But for those with locations in multiple states, what makes one state a better choice than another?
Possible advantages
Companies apportioning trucks under the International Registration Plan (IRP) must choose a base jurisdiction (state or province) to work with. If more than one jurisdiction could qualify as the base jurisdiction for your company, you have the option to choose which one you’ll apply to for apportioned registration.
But what’s the difference? Some states are considered favorable for IRP registration due to:
- Streamlined processes,
- User-friendly systems,
- Lower fees, and/or
- Efficient services.
Must still qualify
But it’s not as simple as picking the easiest state to work with. You must prove that you have an “established place of business” in the jurisdiction you wish to choose.
The IRP provides a three-part test to determine your base jurisdiction. All three parts must be met for a state or province to qualify as your base jurisdiction.
If you have an “established place of business” in more than one jurisdiction, it might pay to do a bit of research on those states to determine which would be the best fit for your operations.
It doesn’t change what you pay for your miles
Note that having this option does not change what you’ll pay to every state where you operate. The recordkeeping and reporting requirements under IRP lead to registration fees based on 100 percent of the distance traveled, by jurisdiction.
Regardless of your base state, each state where you operate will get their portion of the fees based on their rate and the miles you operate there.
The bottom line
If you have facilities in multiple states, you may have options when it comes to picking a base jurisdiction to work with. But remember that — whichever state you choose — you’ll need to meet the criteria for “established place of business” to qualify.
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2025-03-28T05:00:00Z
NewsIndustry NewsFleet SafetyDriver qualificationsDrivers qualification (DQ file)Driver qualification and hiringFocus AreaIn-Depth ArticleEnglishTransportationUSA
Promoting from within to CMV driving roles? Use a checklist to avoid nuclear verdict detonators
Moving a non-regulated employee to a commercial motor vehicle (CMV) driving role might seem straightforward. The transition involves navigating a web of Federal Motor Carrier Safety Regulations (FMCSRs). Avoid costly compliance mistakes that could result in audit fines, or potential detonators of a nuclear verdict in post-crash litigation.
Below is an overview of the minimum compliance requirements and a link to complete checklist.
Driver qualification file (DQF) documents
The promotion to a CMV driving role starts with the creation of a DQF. There are checks done when initially hiring a person as a non-regulated employee. However, this file is mandatory to show the employee is qualified and able to safely operate a CMV.
The DQF must include:
- Department of Transportation (DOT)-regulated employment application (391.21): Different from a general employment application, this document requires a three-year history of the driver's residences and employment (regulated and non-regulated), the social security number (SSN) and birth date, along with other elements required by 391.21(b).
- Motor vehicle records (MVRs) (391.23(a)(1)): MVRs must be obtained from each of the driver’s licensing authorities in the prior three years. MVRs are run every year thereafter for the annual review (391.25). MVRs help assess the licensing status and the history of violations and accidents.
- Safety Performance History (SPH) (391.23(d)): Verify the driver's employment dates and DOT accidents at regulated employers in the prior three years within 30 days of the date they moved to a CMV driving role. If all three years were in a non-regulated role, that must be documented.
- Road test certification (391.31): Non-CDL and CDL drivers must pass a road test to demonstrate their ability to operate a CMV safely. The road evaluation and certificate must be in the DQF. A carrier can choose to accept a copy of a CDL or a road test certificate issued by a carrier in the past three years.
- Medical certification (391.43): A certified medical examiner (CME) from the National Registry of Certified Medical Examiners (NRCME), not their personal care provider (PCP), must certify the person before they operate any CMV. The medical certificate must be renewed at least once every two years prior to the expiration date. CDL drivers must have their medical certification information on their MVR.
A detailed qualification checklist is available at this link: DQ File Checklist.
Drug and alcohol testing records
For employees that will operate a CDL-CMV (see the definition in 383.5), DOT drug and alcohol testing and Clearinghouse query requirements apply. Before operating a CDL CMV for the first time, in addition to verifying that the driver holds a valid CDL, the employer will need the following documented:
- Pre-employment drug test result (382.301),
- Pre-employment query of the Clearinghouse (382.701(a)),
- Receipt signed by the driver for the DOT drug and alcohol policy (382.601(d)), and
- Proof that the driver was asked about previously failed DOT pre-employment tests within the past two years (40.25(j)).
Key to remember: Reduce the risk of costly accidents or fines due by following a qualification checklist when moving an employee from a non-regulated job to one involving the operation of a CMV.
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