11 hidden costs in OSHA Walkaround rule, says Advocacy

Safety determinations

Submitting a PMN sparks the beginning of the new chemicals review process. EPA completes the review process by making one of five possible safety determinations for the new chemical.

It’s important to note that three types of determinations fall under the scope of Section 5(e) actions. If EPA makes any determination under Section 5(e), it must issue a Section 5(e) order with requirements that limit or ban the manufacture, processing, distribution in commerce, use, or disposal of the new chemical. Examples include toxicity testing, personal protective equipment for exposed workers, and environmental release restrictions.

Let’s take a look at each one.

Regulatory action

In December 2024, EPA finalized changes to the rule for new chemical reviews. It clarifies that the agency must make one of five statutory determinations for each PMN, significant new use notice, and microbial commercial activity notice it receives.

The final rule also:

• Eliminates full review exemptions for per- and polyfluoroalkyl substances (or PFAS) as well as for persistent, bioaccumulative, and toxic (PBT) chemicals if environmental releases of or potentially unreasonable exposures to PBT chemicals are expected;
• Clarifies the information required in new chemical notices;
• Changes EPA’s procedures for reviewing notices with incomplete information or errors;
• Updates the application form on the EPA Central Data Exchange; and
• Streamlines the suspension request process for submitters.

Key to remember: EPA reviews each new chemical and makes one of five possible safety determinations that dictate both if and how the substance can enter the marketplace.

Proposed legislation

Bipartisan legislation has recently been introduced in the House that would require businesses to provide restroom access to truckers who are loading or delivering cargo at their warehouses, manufacturers, distribution centers, retailers, and ports.

Supported by leading organizations in the trucking industry, the Trucker Bathroom Access Act (H.R. 9592) was introduced on Dec. 15, 2022. The bill requires retailers, warehouses, and other establishments with existing restrooms to provide access to drivers who are loading or delivering cargo. Additionally, operators of ports and marine terminals must provide access for drayage and parking while accessing such restrooms.

This amendment to Title 49 would exempt some employers from the bill including filling and service stations, and restaurants 800-square feet or smaller with restrooms intended for employee use only. The bill doesn’t require employers to construct new restrooms but to give truck drivers the same access as employees or customers.

Your restroom availability affects their health

Commercial truckers and delivery drivers are the lifeline of our supply chain of supplies, products, and consumables. Working tirelessly all hours, during holidays and weekends, and throughout the pandemic, they continue to deliver critical food and emergency supplies to companies everywhere. Employers have the privilege of demonstrating gratitude to truckers and delivery drivers with a positive work environment.

The benefits of allowing truckers and delivery drivers the convenience and safety of readily available, sanitary restroom facilities are plenty. They’re able to rest and reset when necessary, which keeps them and others safer on the roads. Equally important, restroom availability prevents drivers from having to search for available facilities elsewhere, allowing them to keep a timely delivery schedule, limit supply chain delays, and ultimately lower costs for employers and customers.

Keys to remember

The proposed Trucker Bathroom Access Act will require retailers, warehouses, and other establishments with existing restrooms to provide access to truckers and delivery drivers who are loading or delivering cargo. Access to restrooms keeps them refreshed and ready to deliver essential supplies to companies across the country.

What’s considered fill material?

The regulations at 40 CFR 232.2 define fill material as any material placed in WOTUS that:

• Replaces any part of WOTUS with dry land, or
• Changes the bottom elevation of WOTUS.

Fill material excludes trash and garbage. Common examples of fill material are:

• Construction debris,
• Materials used to create a structure/infrastructure,
• Rock,
• Sand, and
• Soil.

Whenever fill material is dumped, placed, or deposited in WOTUS, a “discharge of fill material” occurs. Examples (according to 232.2) range from road fills to commercial and industrial site development fills.

The Environmental Protection Agency and the U.S. Army Corps of Engineers (USACE) jointly administer the Section 404 permit program. The USACE typically issues the permits unless a state or tribal program is authorized to issue them.

Does your project require a permit to fill?

To answer this question, you’ll need to address a few more questions:

Entry-level driver training (ELDT)

The ELDT rule, which came into effect in February 2022, was designed to ensure that all new CMV drivers receive a consistent, standardized level of CDL training.

ELDT mandates are uniform across the country, however, the specific training curricula can vary depending on the type of vehicle or the specific endorsement the driver seeks (e.g., Class A or B CDL or passenger, school bus, or hazardous materials endorsement).

ELDT must be administered and presented by a school or entity listed on the Federal Motor Carrier Safety Administration’s (FMCSA) Training Provider Registry (TPR). The training consists of two main components: theory (classroom-based instruction) and behind-the-wheel (range and public road) training.

Theory training

The theoretical portion of the ELDT includes topics such as vehicle inspection, basic control, safe operation, and the handling of hazardous materials. Driver understanding is demonstrated by achieving a test score of at least 80 percent on theory assessments.

Behind-the-wheel training

The practical component of the ELDT requires entry-level drivers to gain real-world experience by driving under the supervision of a qualified trainer.

Under the ELDT regulations, all entry-level drivers must demonstrate proficiency in vehicle inspections, backing skills and on-the-road driving before being allowed to take the CDL skills test. While proficiency is left to the discretion of the instructor, the FMCSA believes that demonstrated proficiency requires some level of successful repetition of each of the required skills.

Modernized CDL testing

In contrast to the ELDT's focus on training, the modernization of CDL testing places an emphasis on evaluating the skills and knowledge of drivers. The modernization of testing aims to make CDL assessments more reflective of real-world driving conditions and incorporate new technology into the process.

Computerized knowledge testing

Written tests for CDL applicants were previously administered on paper, they are now largely conducted via computer-based testing (CBT). This allows for quicker testing, more accurate assessments, and the ability to include multimedia elements like video simulations.

Skills test improvements

While the core elements remain the same, modernized tests now include more comprehensive evaluations. Vehicle inspection tests now require the driver to be tested on fewer items.The primary focus is on safety-critical items. Drivers are required to describe items they are inspecting, what they are looking for and why they are inspecting each part. The basic control skills test is conducted in a smaller area. Skills drivers are tested on include forward stop, straight-line backing, forward offset tracking and revers offset backing.

Primary differences

It is important to understand that modernized skills testing does not negate any of the requirements in the ELDT mandate, they are two stand-alone requirements.

The primary difference between ELDT and modernized CDL testing lies in the focus. ELDT is aimed at equipping drivers with the knowledge and practical skills required to operate a CMV safely before taking the CDL exam. Modernized CDL testing is designed to evaluate how well drivers apply their knowledge and skills in real-world situations.

These two elements—training and testing create a more skilled and prepared commercial driving workforce. A focus on both foundational training and modernized evaluation, aims to meet the growing challenges of the transportation sector in the 21st century.

Key to remember: Better prepared drivers result in safer highways.

The basics of logging exemptions

To be able to use this logging exemption in 395.1(e)(1), the driver must:

• Stay within 150 air-miles of the work reporting location for the day (draw a 150 air-mile radius circle around the work reporting location for the day — the driver must stay within this circle),
• Be back to — and released from — the work reporting location for his/her 8- or 10-hour break within 14 hours, and
• Include the starting and ending times for the day and the total hours on duty on the time record for the day.

The company must retain the time record and have it available for inspection for six months.

What if the driver goes too far or works too many hours?

If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.

If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).

30-minute break exemption

When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).

If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.

Common myths

Here are some of the common myths and misunderstandings about the 150 air-mile exemption:

• The driver must have the time records in the vehicle. Myth. The driver simply needs to explain to an officer during a roadside inspection that he/she does not have logs due to operating under the 150 air-mile exemption and that the required time records are back at the carrier’s office (just telling the officer, “I don’t have any logs” will lead to a violation, so the driver needs to know to provide the full explanation).
• The driver must log the previous seven days if he/she had been using this exemption and suddenly can’t. Myth. If the driver cannot use the exemption on one particular day, that is the only day the driver must use a regular log (either paper or electronic).
• Passenger-carrying drivers and drivers hauling hazardous materials cannot use this exemption. Myth. There are no restrictions on the use of this exemption, so any commercial driver can use it.
• A driver that crosses state lines cannot use this exemption. Myth. As this exemption appears in the Federal Motor Carrier Administration (FMCSA) regulations, it can be used by interstate drivers.
• Only drivers that operate out of a “company terminal” can use the 150 air-mile exemption. Myth. As long as the driver makes it back to the work reporting location for the day within the appropriate number of hours, the driver can use the exemption.
• Drivers that move from one jobsite to another every few weeks cannot use this exemption. Myth. If a driver that normally uses this exemption switches work reporting locations, the day the driver switches work reporting locations is the only day the driver cannot use the exemption.
• Drivers covered by this exemption are also exempt from the driver qualification (licensing and medical cards), driving, and vehicle inspection requirements. Myth. The only rules the driver is exempt from are the logging requirement in 395.8 and the 30-minute break requirement in 395.3.
• The driver cannot drive more than 150 miles for the day. Myth. The driver can drive as many miles as he/she wants to or needs to, as long as the driver stays within the 150 air-mile radius circle and gets back to the work reporting location within the appropriate number of hours.
• If a 150 air-mile driver gets into a vehicle with an ELD, the driver must use it. Myth. The carrier can have the driver log in and have the driver entered into the system as an “exempt driver,” or the carrier can request that the driver not log into the device and then attach a comment to the unassigned driving time generated by the driver’s movements. The comment would need to explain that the driver using the vehicle was a 150 air-mile driver who submitted a time record. It is up to the carrier to decide which option to use. If stopped for a roadside inspection, the driver will need to be able to explain to the inspector that he/she is an exempt driver using the 150 air-mile exemption, so using the electronic log is not required.

What’s different with the ‘150 air-mile non-CDL property-carrying drivers’

The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.

If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.

If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.

Managing the use

If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).

If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.

Verifying compliance is important

During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!

For-hire vs. private

For-hire carriers use vehicles to transport people or property and are paid for their service. The fee could be a direct fee like a fare or a rate but could also be other indirect forms of compensation. Examples of for-hire operations include a trucking company that hauls other people’s property for a fee (direct compensation) or a hotel that includes in its service the transportation to and from the airport to the hotel (indirect compensation).

Private carriers, on the other hand, transport only their own goods or people. Examples include a manufacturer that uses its own commercial vehicles to transport its product, a construction or landscaping company that uses commercial vehicles to transport equipment and employees to job sites, or a utility company that operates commercial vehicles in support of its operations.

For-hire operating authority

While private carriers are not required to obtain operating authority from the FMCSA, for-hire carriers are required to get authority to move property or people that belong to somebody else and get paid for their service. Having authority is often referred to as having an MC Number.

The most common types of authority are:

• Property for-hire
• Passenger for-hire
• Household goods
• Broker
• Freight forwarder

If a company never operates a commercial motor vehicle (CMV), it is possible to have authority, but not have a USDOT number. For example, straight brokers or freight forwarders.

As part of obtaining for-hire authority, carriers must designate process agents and demonstrate financial responsibility (have proper insurance coverage).

One size does not fit all

Authorities are not all-inclusive. Separate authority is needed for each type of service offered. For instance, a for-hire, over-the-road carrier that also wants to be able to resell its extra demand will need both for-hire and brokerage authorities. A company is required to pay a $300 one-time fee for each type of authority needed.

Permanent authority required

There are no temporary permits available to substitute for authority. For-hire operations may not be performed until the proper authority has been granted. It’s not uncommon for otherwise private carriers to become for-hire carriers to generate revenue on back-hauls or help balance capacity and demand during slow periods or seasons.

Getting it right

Carriers need to get it right when it comes to authority. Carriers required to have authority — but don’t and operate anyway — can get themselves into trouble. Penalties for operating without proper authority can get expensive and can result in out-of-service orders.

To-do before October 1

Get ready for renewal by taking the following steps now:

• File all your highway use tax returns that are due.
• Pay your taxes. The state will not issue a new certificate of registration if you owe back taxes. Before you apply to renew, make sure that you’ve paid all taxes due under any of the programs administered by the New York State Tax Department, including:
  • HUT,
  • personal income tax,
  • International Fuel Tax Agreement (IFTA),
  • sales tax, and
  • withholding tax.
• Create an online account if you do not already have one and you want to renew your credentials and pay online (https://www.oscar.ny.gov/).
• Make sure your vehicle registration information is correct and accurate. Review and update your information as soon as possible. Incorrect information will delay the processing of your certificates and decals.

Beginning October 1

Once the renewal period opens, renew your credentials and pay your renewal fees online with One Stop Credentialing and Registration (OSCAR).

Submit your renewal application by November 30, 2024, to make sure you receive your decals in time to place them on your vehicles before January 1, 2025.

If you are already enrolled in OSCAR, use your current OSCAR password to renew online.

If you are not enrolled, visit OSCAR, and select Enroll Now. You must have a United States Department of Transportation (USDOT) number and an employer identification number (EIN).

To renew your registration:

1. Visit the OSCAR website and select HUT Renewal from the Business Type drop-down.
2. Enter your information in the USDOT#, NYS Tax ID#, and Password fields, then select Log in.
3. If you have 300 or fewer vehicles, choose either:
   1. Renew all HUT/AFC Certificates of Registration to renew all your active current series permits, or
   2. Select HUT/AFC Certificates of Registration to renew specific permits.
4. If you have more than 300 vehicles, choose either:
   1. Renew all to renew all your active current series permits, or
   2. File renewal to renew select permits.

If you are unable to renew electronically, you may file Form TMT-1.2, Renewal Application for Highway Use Tax (HUT) and Automotive Fuel Carrier (AFC) Certificates of Registrations and Decals – 25th Series.

Key to remember: Take steps now to renew your NY HUT and ensure you receive your new decals before the current ones expire.

Here are your options for January/February

Carriers must display one or more of the following to travel through IFTA member jurisdictions for the first two months of 2023:

• A valid 2023 IFTA license and two IFTA decals issued by an IFTA member jurisdiction (you filed on time and received your new credentials in time for 2023); or
• A valid 2022 IFTA license and two IFTA decals from an IFTA member jurisdiction as long as the renewal application has been filed for 2023 (you filed on time but didn’t receive your new credentials in time for 2023); or
• A valid trip permit issued by the IFTA member jurisdiction through which they are operating.

Remember, IFTA license renewals for 2023 must be filed with your base jurisdiction before the end of 2022. The two-month grace period is for display of renewal credentials, not to file your renewal application for those credentials.

For early filers

Carriers renewing credentials may operate with the new 2023 IFTA decals and license two months prior to the effective date shown on the credentials. These carriers must still file a fourth quarter report for 2022, including all operations for that quarter.

Credentials 101: IFTA license and decals

Any person or carrier based in an IFTA member jurisdiction operating a qualified motor vehicle(s) in two or more member jurisdictions is qualified to license under the IFTA program. Applications request basic information about the carrier and its operations and must be submitted with the applicable license and/or decal fees. Fees vary by jurisdiction.

The IFTA license is valid for the period of January 1 through December 31. Each IFTA license must be renewed for the next calendar year. The base jurisdiction will notify its licensees of the renewal requirements.

If the applicant meets all IFTA application requirements, the base jurisdiction will issue the IFTA license and decals. The license contains an account number assigned by the base jurisdiction. This account number is then used for reporting all IFTA activity of the licensee.

The licensee is required to make legible copies of the license and carry one copy in each vehicle. Since January 2019, the license may be carried electronically. Failure to display a copy of the license may subject the vehicle operator to the purchase of a trip permit and/or a citation. Each licensee is issued two vehicle identification decals for each qualified vehicle in the fleet. Decals must be placed on both sides of the vehicle’s cab (passenger and driver side). Failure to display the identification decals in the required locations may subject the vehicle operator to the purchase of a trip permit and a citation.

Key to remember: For seamless operation into the new calendar year, file your IFTA renewal application with your base jurisdiction well before December 31, 2022.

8 steps involved in an HR audit

If you decide an audit would be beneficial for your organization, here are the basic steps to share with leadership to make sure everyone is on board.

1. Define the scope and goals of the audit. Will the focus be on compliance with labor laws, efficiency of HR practices, or both?
2. Review HR policies, employee handbooks, and contracts. This step ensures that the policies are up to date and in line with current laws and regulations. Make sure policies protect staff from workplace harassment, for example.
3. Analyze recruiting and hiring practices. This includes job descriptions, notices, applications, and onboarding practices. Ensure that these processes are fair, non-discriminatory, and in compliance with labor laws.
4. Review compensation structure and payroll. Evaluate whether employees are being paid fairly and in compliance with all relevant federal, state, and local laws. This includes making sure all employees are paid at least the applicable minimum wage or minimum salary level, and that you are calculating overtime correctly when needed. Make sure employees and independent contractors are classified correctly.
5. Look at benefits and leave policies. Confirm that leave policies align with federal and state laws. Verify that health insurance, retirement plans, and other benefits meet the legal requirements and are communicated effectively to employees.
6. Evaluate performance management systems. Assess whether performance reviews are fair, unbiased, and aligned with company goals. Make sure that systems are in place to provide constructive feedback for employees. Consider whether disciplinary notes or performance evaluations have been inconsistent or vague and implement ways to improve this so that in the future written documentation can help prove, for example, that proper steps were taken. 
7. Ensure that the company adheres to all other applicable labor laws. This includes posting requirements, working conditions, workplace safety, and other statutory requirements.
8. Review employee files. Make sure you are adhering to recordkeeping laws. For example, an employee’s personal health information must be kept separate from their general personnel file. 

Key to remember: With the flurry of employment law changes in the past several years, 2025 may be a good year to do an HR audit.

New Jersey or Pennsylvania?

Take the case of Inna, who worked from her home in New Jersey for a company located in Pennsylvania. Inna had worked remotely for years, but the company began requiring employees to work from the office.

In January 2023, Inna had surgery. She used about two sick days per week during her recovery. Sangeeta, Inna’s supervisor, told her that she had to use leave under the Family and Medical Leave Act (FMLA) after her surgery.

Despite having prior approval to work from home until June 2023, Inna submitted a physician’s note, and the employer approved her remote work only through May 13, 2023. The employer shortened the approval again when Sangeeta told Inna on April 14, 2023, that as of May 1, 2023, she had to be on-site three days per week because of her position.

Employee fired, sued

On June 21, 2023, the company fired Inna. Inna sued claiming that the employer violated the New Jersey Conscientious Employee Protection Act (CEPA) and New Jersey Law Against Discrimination (NJLAD) when it fired her for invoking her disability leave rights. She also objected to the unlawful and discriminatory activity of her supervisors.

Court ruled in employer’s favor

The employer asked the court to dismiss the case because New Jersey was not Inna’s state of employment, rather, it was Pennsylvania where the company was based. The court agreed with the employer’s argument, even though typically courts look to the state in which an employee is performing work, which in this case was New Jersey.

The court held that, regardless of where an employee lives, CEPA and NJLAD are only applicable to situations in which New Jersey is the state of employment or where the employee “has significant employment responsibilities in New Jersey.”

While New Jersey courts have consistently applied the law of the state of employment to claims of workplace discrimination, an exception might apply when an out-of-state employer has involved non-trivial employment responsibilities in New Jersey. Inna’s company did not conduct any business in New Jersey or target New Jersey in any purposeful way.

The court found that Inna could not file a claim under New Jersey law because she:

• Was hired to work exclusively in Pennsylvania,
• Had no responsibilities outside of the company’s Pennsylvania offices, and
• Worked only with and reported to individuals in the Pennsylvania office.

Takeaways for all employers

Not all claims are the same. Discrimination claims might have a different focus than other types of claims. Similarly, not all courts rule the same way. This is a unique case.

Generally, employers should still apply the employment laws that are relevant to the state in which an employee works — even if they’re working remotely in a different state.

If, for example, a remote employee works in a state with a paid leave law and qualifies for leave, the employer would grant the employee the related leave, even if the state in which the employer is headquartered doesn’t have paid leave.

Khartchenko v. The American Oncologic Hospital, Inc., et al., District of New Jersey, No. 23-cv-23043, November 20, 2024.

Key to remember: Employment law jurisdiction can be complex. In certain situations, the employment laws of the state in which the employee is physically working might not apply.

OSHA recordkeeping requirements

OSHA's recordkeeping requirements found under 29 CFR 1904 are designed to ensure that employers maintain accurate records of work-related injuries and illnesses. Additionally, the data helps OSHA, and the employer, identify and correct workplace hazards, preventing future incidents.

Recording: Employers with more than 10 employees, except those in partially exempt industries, are required to record work-related injuries and illnesses using OSHA forms, including the following:

• Form 300: Log of Work-Related Injuries and Illnesses.
• Form 300A: Summary of Work-Related Injuries and Illnesses, which must be posted annually from February 1 to April 30.
• Form 301: Injury and Illness Incident Report, detailing each incident.

Additionally, employers must retain these records for a minimum of five years and make them available to employees, former employees, and their representatives upon request.

Reporting: Certain severe injuries and illnesses must be reported directly to OSHA within specific time frames: fatalities within 8 hours, and in-patient hospitalizations, amputations, or losses of an eye within 24 hours.

Electronic submission: Some employers are also required to electronically submit their forms annually to OSHA based on establishment size:

• 250+ employees must electronically submit their OSHA 300A annual summary data.
• 20-249 employees in certain industries must electronically submit OSHA 300A annual summary data.
• 100+ employees in certain industries must electronically submit data from their OSHA 300 log, 301 incident report forms, and 300A annual summary.

MSHA recordkeeping requirements

Similar to OSHA, MSHA's requirements, found under 30 CFR Part 50, are intended to assist employers in maintaining accurate records of workplace injuries and illnesses, as well as identifying and addressing hazards.

However, requirements are tailored to the unique risks and operational characteristics of the mining industry and include the following:

• Reporting: All accidents, injuries, and illnesses must be reported using MSHA Form 7000-1 within 10 working days of the incident.
• Record retention: Reports must be kept at the mine or nearest mine office for at least five years.
• Multiple injuries: Separate forms must be completed for each miner injured in the same incident.
• Quarterly reports: Mine operators must submit MSHA Form 7000-2 quarterly, detailing employment, coal production, and injuries/illnesses. Deadlines are April 15, July 15, October 15, and January 15.

Clarifying the relationship

Both OSHA and MSHA are under the Department of Labor and provide safety and health regulations for workers. However, OSHA's jurisdiction spans most private sector employers and employees, as well as some public sector workers, covering a wide array of industries. In contrast, MSHA specifically regulates surface and underground mining operations.

This division of responsibilities can sometimes create confusion, but an interagency agreement established when MSHA was created in the 1970s clarifies the authority and coordination between OSHA and MSHA, which includes:

• Jurisdiction: MSHA's authority oversees all aspects of mining operations. This includes the lands, structures, facilities, equipment, and other properties used in mining and covers both surface and underground mines.
• Regulatory gaps: If MSHA does not have specific regulations for a particular safety hazard, OSHA regulations can be applied ensuring no gaps in protecting workers. For example, if a mining operation involves activities like construction or maintenance that are not explicitly covered by MSHA, OSHA standards may be enforced to address those hazards.
• Collaboration: OSHA and MSHA collaborate on rulemaking, policy development, and training programs to ensure consistent safety standards across industries. They share information, conduct joint inspections, and address emerging safety and health issues, ensuring regulations keep pace with technological advancements and industry changes. This unified approach helps avoid conflicting regulations and promotes worker safety.

Key to remember: OSHA covers a broad range of workplaces and MSHA focuses specifically on mining operations. While both agencies strive to work together seamlessly, they do have differing recordkeeping requirements that must be followed to ensure compliance and safety in their respective workplaces.

Rope or chain

The regulation at 1910.29(b)(15) clarifies that ropes used for rails must be inspected as necessary to ensure they continue to meet strength requirements. This shows that OSHA allows using ropes or chains for loading areas, docks, and other locations where removable sections are needed.

Among other things, the material must be at least one-quarter inch in diameter. The top rail must be able to withstand 200 pounds of force without stretching lower than 39 inches. A top rail must be 42 inches, plus or minus 3 inches, so the minimum height is 39 inches. Since the regulation requires a mid-rail, a single rope or chain will not suffice, but two or more strands could meet the guardrail standards.

Less than four feet

A guardrail or other fall protection is required for any unprotected edge of four feet or higher. Lower docks or platforms (say, 43 inches high) do not require fall protection. Of course, a fall from that height could cause serious injury so employers should have some protection or warning in place. Note that most loading docks are more than four feet high and will need fall protection. For related information, see our article Why you need guardrails on open dock platforms.

Again, ropes or similar barriers could be an option. At heights below four feet, the materials would not technically need to meet the strength requirements for guardrails, but a stronger system would offer better protection. Still, even using brightly colored ropes as a visual warning could help prevent an employee from inadvertently stepping off the edge.

Note that California may require rails for platforms 30 inches or higher.

No guardrail required?

The federal regulations list only three situations when employees could be four feet or more above a lower level, but do not need guardrails or other fall protection. They are:

• Dockboards used only with motorized equipment per 1910.28(b)(4);
• Repair or service pits for vehicles per 1910.28(b)(8); and
• Work on low-slope roofs in specific circumstances per 1910.28(b)(13).

Even though guardrails or other fall protection is not required, employers still need to take preventative measures.

Workers using the dockboards as described in the regulation must receive training on fall hazards and mitigation measures under 1910.30.

For service and repair pits, only employees trained under 1910.30 may approach within six feet. The employer must also have floor markings and/or warning lines at least six feet from the edge of the pit, as well as signs reading “Caution – Open Pit.”

For employees on low-slope roofs, the exception from fall protection applies only when:

1. Work will be performed at least 15 feet from the edge,
2. The job qualifies as “infrequent and temporary,” and
3. The employer enforces a rule prohibiting employees from going within 15 feet of the edge unless they’re using fall protection.

The regulation does not define the terms “infrequent” and “temporary” but OSHA clarified that temporary tasks usually require an hour or two at most, and infrequent means the task is performing only on occasion, such as monthly. An example would be replacing a filter on a roof-mounted AC unit once per month.

Key to remember: A guardrail is usually a solid structure but can include rope or chain when necessary. Fall hazards under four feet or hazards that meet specific regulatory exceptions do not require guardrails.

OSHA’s announcement on helmets vs. hard hats

OSHA released a Safety and Health Bulletin (SHIB 11-22-2023) on November 22, 2023, detailing the key differences and benefits of using modern safety helmets over traditional hard hats.

And just a few weeks later, in the December 11, 2023 Trade Release, the Agency announced it would now require its inspectors to wear Type II head protection, which is also commonly referred to as safety helmets.

The two main benefits of Type II safety helmets

The November 22, 2023 SHIB discussed two main benefits of choosing modern safety helmets over traditional hard hats -- the construction of materials and the use of chinstraps.

And while OSHA has recognized the benefits of Type II safety helmets, and is actively taking steps to protect its own employees, it’s important to understand that there is not a new requirement for employers to make the switch to safety helmets.

That being said, a growing number of employers have recognized the benefits of added head protection and are choosing to use Type II helmets for their workers. In addition, some clients are starting to contractually require their construction contractors to make the switch as well.

Understanding the different types of head protection

Hard hats will have a Type I or Type II rating on the manufacturer’s sticker. These markings are based on ANSI Z89.1’s impact ratings.

Type I hard hats protect from objects or impacts from the top center area of the hard hat and are often used in work areas with no lateral head impact hazards.

Type II hard hats, on the other hand, offers protection from both top and lateral impacts and objects and is often found on construction job sites or complex general industry settings where workers face multiple head contact exposures.

Hard hats are classified based on their level of voltage protection. See the chart below.

Choosing the right head protection for your employees

Employers should conduct a job hazard analysis and/or a PPE assessment to determine which style hard hat is best for their workers. In general, OSHA recommends the use of Type II safety helmets at the following locations:

1. Construction Sites: For construction sites, especially those with high risks of falling objects and debris, impacts from equipment, or slips, trips, and falls, safety helmets have enhanced impact resistance and additional features that offer superior protection compared to the components and construction of traditional hard hats.

2. Oil and Gas Industry: In these sectors where workers face multiple hazards, including potential exposure to chemicals and severe impacts, safety helmets with additional features can provide comprehensive protection.

3. Working from Heights: For tasks or jobs that involve working from heights, safety helmets offer protection of the entire head and include features that prevent the safety helmet from falling off.

4. Electrical Work: For tasks involving electrical work or proximity to electrical hazards, safety helmets with non-conductive materials (Class G and Class E) provide protection to prevent electrical shocks. However, some traditional hard hats also offer electrical protection.

5. High-Temperature Environments: In high temperatures or where there is exposure to molten materials, safety helmets with advanced heat-resistant properties can provide additional protection to workers.

Key to remember: While there isn’t a new requirement for safety helmets, employers should review their workplace hazards to determine which style of hard hat will best protect their employees.

Prepare the 300A

Employers that maintain a 300 Log must prepare a 300A Annual Summary and post it from February 1 though April 30. Even if the establishment had zero recordable incidents, the employer must post the summary. OSHA requires posting physical copies, but employers can post on a company intranet in addition to the physical poster.

Before creating the 300A, review the 300 Log for accuracy. Employers don’t have to examine every entry but should spot check a number of cases. Typical problems include:

• In Column (E), listing a vague location such as “warehouse” rather than a more accurate description such as “loading dock north end.”
• Column (F) requires describing the injury, the body part, and the cause. A description like “burned forearm” does not specify left or right and does not describe how the incident occurred. OSHA gives the example, “Second degree burns on right forearm from acetylene torch.”

To complete the 300A, employers need to calculate the average number of employees and the total hours worked. For more information, see our article Completing the 300A: Tips for the mathematically challenged.

Once completed, a company executive must certify the summary before posting. The regulation defines an executive to include the owner, an officer, or the highest ranking official at the establishment.

E-report if required

Many employers must submit injury data through OSHA’s Injury Tracking Application (ITA) by March 2nd each year. Reporting obligations are based on two variables:

1. The number of employees at each establishment (not the number in the entire company), and
2. The NAICS code for each establishment.

The employee count is based on peak employment, not the annual average. If the location reached 20 or more employees during any pay period, it may have to report. This includes part-time and temporary workers, if the location was responsible for recording those workers’ injuries.

To illustrate, suppose a furniture store has 17 retail locations, plus a distribution center, for 18 establishments. Each retail store had fewer than 20 employees all year, but the distribution center had 35 employees. None of the retail locations would need to e-report. Only the distribution center must electronically file.

As noted, not every employer is covered, but even furniture stores and grocery stores must report if an establishment had 20 or more employees. In brief:

• If an establishment had 20 or more employees and the NAICS code appears in 1904.41 Appendix A, the location must report.
• If an establishment had 100 or more employees and the NAICS code appears in 1904.41 Appendix B, the location must report.
• If an establishment had 250 or more employees and is required to maintain a 300 Log, the location must report regardless of NAICS code.

Since 2025 is only the second year for e-reporting under the revised regulation, check out the requirements in our article Are you ready for OSHA's new injury e-reporting rule on January 1, 2024?

Key to remember: If your company must maintain an OSHA 300 Log, you must prepare and post a 300A Annual Summary by February 1st and you might need to electronically report injury data to OSHA’s ITA by March 2nd.

Applying exemptions

Employers with 10 or fewer employees do not need to maintain a 300 Log, but this exemption counts all employees at all locations. If an employer has three locations, each with four employees, it has more than 10 employees and the size exemption will not apply.

The other exemption is based on each establishment’s North American Industry Classification System (NAICS) code. Employers might have some establishments that must keep a 300 Log and others that do not, like a manufacturing facility that maintains a 300 Log and an administrative office that is exempt.

In some cases, an establishment’s activities fit under more than one NAICS code, like a manufacturing plant with a distribution warehouse. OSHA advises using the code that either generates the most revenue or has the most employees, whichever the employer deems most applicable. Employers should check their workers’ compensation coverage to see which code they use.

For more information, see our article Which NAICS code should you use for OSHA?

Traveling and remote workers

If an employee has a recordable incident while visiting another establishment, the employer must record the case on the 300 Log for the establishment where the incident occurred, even if the employee normally works elsewhere.

However, if an employee has a recordable incident and is not at an establishment (such as traveling), the employer must record the case on the 300 Log for the establishment where the employee normally works.

Remote workers must be linked to a fixed establishment, typically the location from which they are supervised or receive job assignments. Recordable incidents to remote workers must be recorded on the 300 Log of the establishment to which they are linked. Employers also count remote workers as employees of the linked location, even if they work in another state.

Annual summaries

On February 1, each establishment that maintains a 300 Log must post a 300A annual summary for the previous calendar year. This is required even if the location has 10 or fewer employees, and even if the establishment had zero recordable incidents. Employers cannot combine multiple establishments on a 300A (although short-term establishments can be combined).

If some employees split their work time between locations, employers may distribute their hours worked between locations. However, if someone spends only a small amount of time visiting various locations, the employer may count all hours worked at the primary or linked location. Usually, this would not significantly impact the total hours worked for an establishment.

For more information, see our article Completing the 300A: Tips for the mathematically challenged.

OSHA requires a posting a physical copy of the 300A in the workplace until April 30, but employers may also post the summary on a company intranet for remote workers. OSHA does not require sending the 300A to remote workers who never visit the site, although California does require that.

Key to remember: Employers with multiple locations should confirm that the NAICS code for each location is correct, verify that incidents to traveling or remote workers are properly recorded, and ensure that each covered establishment posts a 300A as required.

Choosing the correct year

The NAICS codes get updated every five years, with 2022 as the most current. Adding confusion, different OSHA regulations use different versions of the codes. For example:

• Employers trying to determine if they’re exempt from keeping a 300 Log under 1904.2 must use the 2002 codes.
• Employers trying to determine if they must submit injury data to OSHA by March 2nd must use the 2017 codes (OSHA updated from the 2012 codes as of January 1, 2024).

Searching codes online may default to the 2022 version, and some codes changed. For example, the 1904.41 appendix lists 4529 for “Other general merchandise stores” which covers retail outlets like dollar stores and variety stores. However, searching that code in the 2022 list shows “no result” since that number changed. The 2022 NAICS code for general merchandise stores is 4552, but that code does not appear in OSHA’s appendix. Employers using the 2022 NAICS codes may incorrectly believe their establishment is not on OSHA’s list.

Employers can search older versions of the NAICS codes at https://www.census.gov/naics/ which also indicates whether a particular code has changed in more recent versions.

Choosing the correct code

In addition to using the NAICS list for the correct year, employers must choose the correct code for each establishment. If a location engages in more than one type of business activity, employers must choose only one NAICS code for OSHA recordkeeping. OSHA says to choose the code for the activity that generates the most revenue or has the most employees.

In some cases, employers can divide a single physical location into more than one “establishment” as defined in 1904.46. To split a single location into multiple establishments, all of the following must apply:

• Each establishment represents a distinctly separate business;
• Each business engages in a different economic activity;
• No single NAICS code applies to the joint activities at the establishments; and
• Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information.

For example, OSHA noted that if an employer operates a construction company at the same physical location as a lumber yard, the employer may consider each business as a separate establishment.

For employers with multiple establishments, the NAICS code for each location should reflect the primary business activity at each establishment. For example, a manufacturing company might have a separate administration office. Using a manufacturing code for the office might not be appropriate, even though it supports the other manufacturing locations. However, NAICS codes starting 5511 for “Management of Companies and Enterprises” might apply.

For example, code 551114 gives examples as follows:

• Centralized administrative offices
• Head offices
• Corporate offices
• District and regional offices
• Subsidiary management offices

That might better describe a corporate administrative office, if the location does not have any warehousing or manufacturing operations. In fact, codes starting 5511 appear on OSHA’s list of establishments under 1904.2 that are exempt from keeping a 300 Log, so applying the correct code could mean that office doesn’t need a 300 Log at all.

Counting employees

Finally, counting employees gets confusing because some OSHA regulations require counting all employees in the company (combining all locations) and others require counting only the employees at each establishment.

• Section 1904.1 allows an exemption from keeping a 300 Log if the entire company has 10 or fewer employees, combining all establishments.
• Section 1904.2 allows an exemption from keeping a 300 Log based on the NAICS code for each location, regardless of the number of employees at the location.
• Section 1904.41 requires establishments in listed NAICS codes to submit injury data to OSHA annually, but only if the establishment (not the entire company) falls within an employee count range. Establishments with fewer than 20 employees need not submit even if the NAICS code appears in OSHA’s list.

Key to remember: NAICS codes update every five years, and employers must use the correct list, which may differ in various regulations.