5 thoughts on job reassignment: The ADA accommodation of last resort

What’s a WCPP?

When specific uses of chemical substances (i.e., conditions of use) in an occupational setting may pose unreasonable risks of injury to employees or the environment, Section 6 of TSCA requires EPA to develop regulations that reduce or mitigate those risks. The agency implements WCPPs to address the risks.

A WCPP requires covered entities to take certain actions in the workplace that shield individuals who engage with the conditions of use from inhalation and/or dermal risk.

Who’s subject to a WCPP?

The requirements of a WCPP may apply to entities that manufacture (including import), process, distribute in commerce, use, or dispose of a TSCA-regulated chemical substance.

The WCPP program extends beyond those who directly handle a regulated chemical substance to anyone in the workplace who’s exposed or who could be exposed to it (e.g., employees, independent contractors, volunteers, etc.).

What are the components of a WCPP?

A WCPP generally consists of multiple elements:

• Exposure limits, such as Existing Chemical Exposure Limits (ECELs), set the amount or concentration of a chemical substance that can be in the air.
• ECEL action levels establish airborne concentration limits that, if exceeded, activate additional requirements (like more frequent monitoring).
• Exposure monitoring measures and compares air concentration levels to the exposure limits.
• Regulated areas establish where airborne concentrations of the chemical substance are above or have a reasonable possibility to go above exposure limits. Facilities limit access to these areas to control exposure.
• An Exposure Control Plan documents the selection and implementation of controls used to reduce exposure. It's developed according to the hierarchy of controls, which mandates that the most protective actions used to reduce hazardous exposures be considered first. The general order is elimination, substitution, engineering controls, administrative controls, and then personal protective equipment (PPE) use.
• Dermal and inhalation control measures may consist of direct dermal contact control measures (like removing the chemical substance at the source before a worker encounters it) and PPE use (such as requiring workers to wear chemical-resistant gloves or use respirators when handling the chemical substance).
• Training applies to workers who are or could be exposed to the chemical substance and typically covers multiple elements of the WCPP (work processes, proper PPE use, and exposure controls, for example).
• Recordkeeping demonstrates compliance with the WCPP. Facilities usually have to maintain records of monitoring results, Exposure Control Plans, regulated areas and those authorized to use them, training, and PPE programs.
• Downstream notifications alert others in the supply chain of WCPP requirements. Manufacturers, processors, and distributors generally provide the required information on a chemical substance’s Safety Data Sheet.

Know the chemical-specific requirements

If your facility is subject to a WCPP, it’s essential to know the regulations that apply to the specific chemical substance. The chemical’s rule will define the conditions of use to which the WCPP applies and may contain different or additional requirements. Also, state or local regulations may have stricter rules that dictate how (and if) your facility can use the chemical substance.

Key to remember: Facilities that use TSCA-regulated chemical substances may have to comply with EPA’s workplace chemical protection program to protect workers and other exposed individuals from unreasonable health risks.

Who will be affected?

The stricter PM2.5 rule will impact many industries, particularly those that emit a lot of fine particle pollution. Some of the most affected sectors include:

• Manufacturing & Heavy Industry – Factories making steel, cement, or chemicals may need stronger pollution controls.
• Power Generation – Coal and gas power plants may have tighter limits, requiring better filtration systems.
• Transportation & Logistics – Ports, rail yards, and trucking centers could have new rules reducing diesel pollution.
• Construction & Mining – Dust and particles from digging, moving materials, and using equipment may need stricter control.
• Agriculture – Large farms, especially those handling animals or grain, may need better dust control.
• Oil & Gas – Refineries and drilling sites may face tougher rules on pollution from burning fuel.

These industries may see higher costs, stricter permits, and changes to operations to meet the new standards.

Tougher pollution limits

Businesses in nonattainment areas must follow stricter PM2.5 rules. This may mean updating operations or investing in better pollution control technology. The goal is to reduce fine particle emissions that harm air quality and health.

New permit rules

Businesses expanding or changing operations that increase PM2.5 pollution may need new permits. These permits show compliance with tighter pollution limits.

State rules may change

States with nonattainment areas must update their air quality plans. This could mean new industry rules, such as lowering emissions, increasing monitoring, or changing reporting requirements.

Increased monitoring & reporting

Expect closer tracking of your business’ pollution levels, including real-time monitoring and more frequent reports. Compliance checks may be stricter in nonattainment areas.

Offsetting pollution

If a business increases PM2.5 pollution, it may need to offset that by reducing pollution somewhere else in the same area. This ensures the total pollution level does not rise.

Costs & economic effects

Businesses in nonattainment areas may see higher costs due to stricter rules. Local governments might offer rewards or fines to encourage pollution reductions. Companies may need to find cost-effective ways to lower their PM2.5 levels while staying efficient.

How to prepare

• Review your business’ pollution levels and find ways to lower them.
• Stay updated on new local and federal rules.
• Work with state agencies to understand new compliance expectations.
• Invest in cleaner technology to stay ahead of regulations.

Key to Remember: By having a plan for the possibility of nonattainment now, your business can adjust to the new PM2.5 rules while helping improve air quality and public health.

Starting destination: About the program

The RFS program (see 40 CFR Part 80 Subpart M) requires gasoline and diesel fuel (called transportation fuel) that’s sold in the U.S. to contain a specific volume of renewable fuel. There are four renewable fuel categories:

• Advanced biofuel,
• Biomass-based diesel (or BBD),
• Cellulosic biofuel, and
• Total renewable fuel.

The route to compliance for refiners and importers that produce, distribute, and sell transportation fuel consists of annual standards, volume requirements, and demonstration.

Stop 1: Discover the annual standards

EPA sets national annual volume requirements for renewable fuel that must be blended into the U.S. market’s total amount of transportation fuel. The agency establishes volumes for each renewable fuel category in addition to corresponding percentage standards.

For example, EPA’s waiver for cellulosic biofuel lowered the 2024 annual volume requirement to 1.01 billion gallons and the percentage standard to 0.59 percent, due to lower-than-expected production volume.

Stop 2: Calculate the volume requirements

Refiners and importers of transportation fuel (“obligated parties”) use the annual percentage standards to determine the number of gallons of gasoline or diesel fuel they must blend individually.

Obligated parties have to meet Renewable Volume Obligations (RVOs) for each type of renewable fuel. RVOs are based on the amount of fuel the parties produce or import (essentially, their share of total transportation fuel). They calculate individual RVOs using this formula:

• Gasoline and diesel production or import volume x Annual percentage standard + Any carryover deficit from the previous year

Consider an example using the amended 2024 requirements for cellulosic biofuel with these factors:

• A production/import volume of 500,000 gallons,
• An annual percentage standard of 0.59 percent, and
• A carryover deficit of 0.

• RVO = 500,000 x 0.59 percent + 0

In this example, the RVO for cellulosic biofuel in 2024 is 2,950 gallons.

Stop 3: Demonstrate compliance

Obligated parties must demonstrate compliance with their individualized RVOs annually. To do so, they need to obtain and retire enough Renewable Identification Numbers (RINs) to meet the RVO for each renewable fuel category (80.1434(a)(1)).

Obligated parties can get RINs by:

• Purchasing batches of renewable fuel and the RINs assigned to them, and/or
• Purchasing RINs that are no longer assigned to batches of renewable fuel.

Let’s look at a common path to obtaining RINs using a fuel blender:

• Fuel is generated.
  • RINs are generated and assigned to the renewable fuel a producer makes. (One RIN represents one ethanol-equivalent gallon of renewable fuel.)
  • An entity produces or imports nonrenewable fuel. The refiner or importer becomes an obligated party subject to RVOs.
• Fuel is blended.
  • A blender purchases renewable fuel with the assigned RINs from the renewable fuel producer and nonrenewable fuel from the obligated party.
  • The blender combines the renewable and nonrenewable fuels.
• RINs are separated.
  • Once the fuels are blended, the blender separates the RINs from the renewable fuel.
  • A service station purchases the blended fuel (without the RINs), and the blender sells/trades the RINs.
  • Obligated parties can purchase separated RINs to meet their RVOs.
• RIN transactions are recorded.
  • The obligated party records each purchase and sale of RINs it makes into the EPA Moderated Transaction System (EMTS). The EMTS tracks all RIN transactions.
• RINs are retired and/or carried over.
  • The obligated party retires the RINs needed to meet the RVO for all four renewable fuel categories (usually at the end of the compliance year).
  • If the obligated party has a surplus of RINs that didn’t have to be retired, the party can either:
    • Carry over the RINs into the next compliance year (after which they can’t be used for compliance), or
    • Sell the surplus RINs.

Final destination: Compliance

Obligated parties report the retired RINs in their annual compliance report (80.1451(a)(1)).

Key to remember: The route to successful compliance with the Renewable Fuel Standard program for gasoline and diesel refiners and importers consists of annual standards, volume requirements, and demonstration.

The EPA definition: “RCRA empty” explained

Under the Resource Conservation and Recovery Act (RCRA), a container that once held hazardous waste is only legally “empty” if it meets particular criteria outlined in 40 CFR 261.7. The first standard that must be satisfied is that all material has been removed from the container using normal means such as pouring, pumping, or aspirating. Secondly, no more than 2.5 centimeters or 1 inch of residue remains on the container's bottom or inner lining. Alternatively, if the container holds 119 gallons or less, it is empty if no more than 3 percent of the total weight exists, or, if the container holds more than 119 gallons, it is empty if no more than 0.3 percent of the total weight exists.

Of course, sometimes special circumstances require further evaluation. For example, a gas cylinder is not empty until the pressure has reduced to atmospheric levels, and acute hazardous waste containers must be triple rinsed with an appropriate solvent or cleaned by another approved method. If these conditions are not met, the container is still legally considered to contain hazardous waste, even if it feels empty.

The OSHA definition: “Empty” under the Hazard Communication Standard

While EPA focuses on environmental disposal and waste management, OSHA’s concern with empty containers centers on worker safety, particularly the potential for exposure to hazardous residues or vapors. Under OSHA’s Hazard Communication Standard (29 CFR 1910.1200), a container that previously held hazardous chemicals must retain its original hazard label until it is adequately cleaned or until the employer removes the label following proper decontamination procedures. For example, a drum labeled “Flammable” must keep this label even if it appears empty, as residual material or vapors may still pose a significant ignition or fire risk. Removing such labels prematurely could lead to workplace hazards and violations of OSHA regulations.

How to stay compliant

Employers must first clearly determine which rules apply to them: whether the container held hazardous materials governed by EPA regulations, hazardous chemicals subject to OSHA requirements, or both. Emptying procedures should be followed, including properly draining the container, performing triple-rinsing when required, and thoroughly documenting all decontamination activities. Original hazard labels must be maintained on containers until they are thoroughly cleaned or reconditioned, as removing labels prematurely violates OSHA’s Hazard Communication Standard. Additionally, employers should provide employees with training on the proper handling, labeling, and disposal of containers and ensure they fully understand what constitutes an empty container under federal standards. Finally, a detailed record of all rinsing, draining, and cleaning processes should be maintained to demonstrate compliance during EPA or state inspections.

Keys to remember: Employers should educate their teams, enforce proper cleaning procedures, and maintain compliance records to ensure they are staying compliant with “empty” container standards.

What are PFAS?

PFAS, called “forever chemicals,” are long-lasting manufactured chemicals that may pose risks to human and environmental health. With thousands of PFAS chemicals, however, controlling their use to reduce the risks is no easy task.

Additionally, PFAS appear in nearly every sector. They’re used in a wide range of products (like food packaging, cleaning products, and textiles) and for commercial and industrial applications.

Current state PFAS actions

Multiple states already have PFAS rules on the books. Check out these examples:

• California bans selling or distributing in commerce any new juvenile product that contains regulated PFAS chemicals (CA HSC Section 108946), such as changing pads, motor vehicle child restraint systems, playpens, and strollers.
• Colorado requires manufacturers of cookware with intentionally added PFAS in the handle or any product surface that contacts food to, among other things, list the presence of PFAS on the product label (House Bill 22-1345).
• Hawaii prohibits manufacturing, selling, offering for sale, and distributing for sale or use food packaging — wraps, liners, plates, food boats, and pizza boxes — with intentionally added PFAS (Act 152 Relating to environmental protection).
• Maryland bans manufacturing, selling, and delivering cosmetic products that contain any of 13 specified PFAS (Md. Code, Health-Gen. Section 21-259.2).
• New York forbids selling or offering for sale new apparel with intentionally added PFAS (N.Y. Consolidated Laws Section 37-0121).

Many states also have proposed PFAS rules under consideration.

Stay alert to state PFAS actions

If your facility uses PFAS, it’s essential to know whether the state has regulations that apply to your operations. Plus, knowing the state’s potential future PFAS rules coming down the pipeline can help you better prepare to comply.

Consider these general tips to support your facility’s efforts to track state PFAS actions:

• EPA provides an online list of the state environmental agencies with links to their websites. Check the state environmental agency’s online news and press releases for policy updates.
• Search for a dedicated rulemaking webpage, as many states maintain a list of proposed and recently adopted regulations. Note that some state sites may be easier to navigate than others, and some state sites may not have a dedicated rulemaking webpage.
• Establish a contact at the state environmental agency. Each agency should list contact information, so don’t hesitate to reach out. You may be able to find someone at the agency who can answer questions about the state’s current and future PFAS rules.

Staying alert to state PFAS regulations can help your organization maintain compliance.

Key to remember: States across the country continue to consider and implement regulations related to PFAS. Staying alert to state PFAS actions is key for businesses to stay compliant.

What is personal conveyance?

The personal conveyance exception allows a driver to use a CMV for personal reasons while off duty, essentially using a CMV for errands or travel. This would be something they would typically do with their personal vehicle, if it were available. When considering whether PC is appropriate for the movement of the vehicle, a driver must consider these four requirements. If the move does not meet all four requirements, it is not PC.

• Does the carrier have a policy authorizing PC?
• Is the driver legitimately off duty during the move?
• Is the destination purely personal?
• Is there any benefit to the carrier? This includes ending up in a better position as far as the current or next assignment.

When a driver is confident the move meets all four requirements, the driver can use PC for the move.

Proper use of personal conveyance

Drivers who are permitted to use PC must be relieved from duty before they can use this exception. Examples of proper usage are:

• Traveling from a truck stop to a restaurant or hotel.
• Commuting between home and the driver’s terminal.
• Driving to the nearest safe place to rest after loading or unloading.

There are many other examples of proper use. Each move should be assessed on a case-by-case basis.

Prohibited use of personal conveyance

Examples of movements that would not qualify as PC are:

• Bypassing an available rest location to get closer to a delivery or pick-up location.
• Time spent transporting a CMV to a maintenance facility.
• Time spent traveling to a carrier’s terminal after loading or unloading.

Common questions

Many drivers find themselves non-compliant because they do not fully understand these requirements. Below are some common questions.

• Can a driver stop at a restaurant for dinner and log off duty for the day, eat dinner, and drive to the truck stop at the same exit using PC?
  • Because the driver intends to end the workday at the truck stop, the driver cannot use PC to get there. The driver would be in compliance if they had gone to the truck stop, logged off duty, then used PC to travel to and from dinner.
• If a load is not available for a driver, can they use PC to travel several hundred miles home?
  • While there is no time or mileage limit on PC at this time, a driver cannot use PC to place the truck or driver in a better position for the next load. Most carriers would load a driver as close as possible to the current location. Since it is not likely that the driver would return to the location the PC began for the next load, PC is usually not appropriate for this move.
• Can a driver use PC to go to a store to get food and other personal items?
  • A driver is permitted to use a CMV to go anywhere they would go in a personal vehicle, as long as the move is strictly personal. The driver cannot be purchasing items for the carrier and must not move the CMV closer to the next pick up or delivery, unless they return to the starting location at the end of the personal move.

Key to remember: PC is a tool a driver can use to complete personal tasks, but care should be taken to ensure the move is purely personal to avoid fines and penalties.

What these permits do

Each of the following permit types serve a specific function, and understanding when and where they’re needed is important to stay compliant and avoid enforcement issues:

• Trip permits allow temporary travel in a state where the carrier isn’t registered under the International Registration Plan (IRP).
• Fuel permits provide temporary authorization to operate without International Fuel Tax Agreement (IFTA) credentials in jurisdictions where you don’t hold a fuel tax license.
• OS/OW permits are required when a load exceeds legal dimensions, axle limits, or total weight.

Why it matters

Obtaining the correct trip, fuel, and OS/OW permits is a critical factor in keeping your operation running legally, safely, and efficiently. When these permits are missing, inaccurate, or misused, the consequences can be significant. At a minimum, a driver may face citations, but more commonly, the vehicle may be placed out of service until proper documentation is obtained. This results in unplanned downtime, delays, and unhappy customers.

Non-compliance can also jeopardize relationships with shippers or brokers. Late or disrupted deliveries due to permit delays or routing problems can lead to lost business opportunities and reputational damage. Even something as simple as failing to carry or present a permit during a roadside inspection can cause an otherwise compliant operation to come to a standstill. In short, overlooking permitting requirements can create a chain reaction of problems that impact your bottom line, safety record, and long-term operational stability.

Common mistakes to avoid

Many carriers, especially those managing permits in-house, fall into the same traps when applying for or managing permits. Watch out for these frequent errors:

• Inaccurate or incomplete vehicle/load information. Wrong axle weights, vehicle specs, or routing details can cause delays or invalid permits.
• Waiting too long to apply. OS/OW permits often require extra processing time for route analysis or engineering reviews.
• Not understanding state-specific requirements. Every state has unique laws, including seasonal weight restrictions, travel curfews, and escort mandates.
• Failing to carry or display the permit as required. Some jurisdictions demand the permit be physically or digitally present and available on request.
• Using expired or misused permits. Permits are often only valid for certain dates, times, and routes. Deviating from that voids the permit.

Trip, fuel, and OS/OW permits are not optional paperwork. They are critical regulatory tools that protect your business, your drivers, and the public. 

Key to remember: By understanding permit requirements and avoiding common pitfalls, you can operate more confidently and efficiently across all jurisdictions.

Who's included?

In New Mexico, the weight-distance tax applies to owners, operators, and registrants of intrastate and interstate commercial vehicles with a declared gross vehicle weight more than 26,000 pounds.

What’s required?

If this program applies to your fleet, you must register and apply each year for a New Mexico Weight-Distance Tax Electronic Permit for each of your vehicles. Then you must file a return and pay the tax quarterly. Certain taxpayers may elect to pay the tax on an annual basis.

If a quarterly weight-distance tax report has not been submitted, the system will not allow the e-permit to be processed.

Computing the tax

The tax is based on vehicle weight and miles traveled on New Mexico roads, so you’ll need those records. The tax is computed by multiplying the miles traveled in New Mexico by the applicable tax rate.

The tax rate depends on:

• The weight class of the vehicle, and
• Whether it qualifies for the lower one-way haul rate for certain trucks that travel 45 percent or more miles for the registration year empty of all load.

Quarterly due dates

Weight distance tax is due by:

• April 30 for the quarter January 1 through March 31;
• July 31 for the quarter April 1 through June 30;
• October 31 for the quarter July 1 through September 30, and
• January 31 for the period October 1 through December 31 each year.

Even if your registered trucks have not traveled through New Mexico during a quarter, you must still file a return for that quarter.

Are there other options?

If your trucks operate on New Mexico highways, you do have options. You can:

• Register each vehicle and then report and pay weight-distance tax quarterly, or
• Pay the trip tax each time one of your trucks enters or exits the state.

Key to remember: If you operate in New Mexico, be sure to add the weight-distance tax to your list of quarterly payments.

‘State and local laws’

A violation of 392.2 is a violation of a local or state law, regulation, or ordinance. These must be obeyed due to 392.2, which reads, “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.”

The confusion is that there are no paragraphs in 392.2, so there technically should be no letters following that section. However, to inform the driver, carrier, and the Federal Motor Carrier Safety Administration (FMCSA) what particular state or local law or regulation was involved, FMCSA has developed a system of suffix codes. The letters following “392.2” – the “suffix” — show which state or local law or regulation was involved.

When one of these codes is used, the officer should include a description of the specific violation in the “violation details” area on the actual inspection report. FYI: Summary roadside inspection reports (such as the ones visible in CSA’s SMS) do not show these details.

Not all 392.2 violations are used in CSA

Not all of these state and local law or regulation violations are used by the FMCSA for scoring purposes. The Compliance, Safety, Accountability (CSA) Safety Measurement System (SMS) does not use the 392.2 violations that cannot be tied to crash causation. Here are a couple of examples: 392.2UCR Failure to pay UCR fee and 392.2W Size and weight are not used.

Most common 392.2 violations

Below are the top 10 392.2 violations written during 2021. All of these violations are safety-related, and therefore used in the CSA SMS for scoring. The BASIC within the SMS the violation is scored in is shown following the violation description.

1. 392.2SLLS2 Speeding 6-10 miles per hour over the speed limit (Unsafe Driving)
2. 392.2C Failure to obey traffic control device (Unsafe Driving)
3. 392.2LV Lane Restriction violation (Unsafe Driving)
4. 392.2SLLS3 Speeding 11-14 miles per hour over the speed limit (Unsafe Driving)
5. 392.2WC Wheel (Mud) flaps missing or defective (Vehicle Maintenance)
6. 392.2SLLS4 Speeding 15 or more miles per hour over the speed limit (Unsafe Driving)
7. 392.2ML Failure to maintain lane (Unsafe Driving)
8. 392.2SLLSWZ Speeding work/construction zone (Unsafe Driving)
9. 392.2PK Unlawfully parking and/or leaving vehicle in the roadway (Unsafe Driving)
10. 392.2FC Following too close (Unsafe Driving)

Key to remember

In general, FMCSA does not write traffic codes. They rely on local and state agencies to do that. When state or local traffic codes are violated, it appears on a roadside inspection report as a violation of 392.2, with a suffix indicating which traffic code was involved.

The intent of the standard

OSHA’s powered industrial truck (PIT) standard (29 CFR 1910.178) is intended to ensure the safe use of fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines. The standard outlines requirements for operational permits and certification.

And, though not specified in the standard itself, PIT operators must be at least 18 years old per federal child labor regulations.

License and certification Q&A

The OSHA PIT standard clearly defines requirements for training and certification. However, some licensing and certification information isn’t as clear. Here are some clarifications:

Q: Who can train, evaluate, and certify PIT operators?

A: OSHA requires in 1910.178(l)(2)(iii) that, “All operator training and evaluation shall be conducted by persons who have the knowledge, training, and experience to train powered industrial truck operators and evaluate their competence.” The OSHA standard doesn’t further define this requirement or set any specific or additional certifications.

Q: Does OSHA require PIT operators to have a valid driver's license?

A: Federal OSHA has no requirement that a forklift operator has a valid motor vehicle driver's license. Some states are more stringent, so check your local and state requirements to confirm.

Q: Does OSHA have regulations that impact an employee’s ability to operate PITs if they’ve received a DUI or suspended license?

A: Because OSHA doesn't require a valid motor vehicle driver's license, the status of that license doesn’t impact PIT operator permitting. Individual states or the employer may have policies that dictate otherwise.

Q: Are PIT drivers required to have their license on them when they are working?

A: Federal OSHA doesn’t require PIT operators to have a license or permit. However, some states such as Michigan do require this. Typically, in states that require a permit or license, the license must be “readily available.” Companies have the option to require the permit or license be carried with the operator.

Q: Are operators required to be trained on each manufacture of PIT model?

A: A June 15, 1999, OSHA letter of interpretation (LOI) clarifies that operators are to be trained and evaluated in the safe operation for the type of truck they’ll be assigned. Operators wouldn’t need additional training for same truck types but would need additional training when truck- or workplace-related training topics are different.

Q: Do PIT operators need to be recertified if they move from one state to another with the same company?

A: In an LOI dated October 1, 1999, OSHA states, "As long as the employer has a reasonable basis to believe that the third-party trainer is qualified and has a program that meets the requirements of the standard, it can rely on that trainer to conduct the training and evaluation of employees and can certify that these employees have been trained. However, the employer may need to provide additional training on site-specific or truck-specific matters." This shouldn’t require retraining for the same type of forklift as already certified; however, workplace conditions or other factors of the new work location may require training for forklift operation in the other state(s).

Operator Impairments

In addition to being properly trained and evaluated, OSHA expects employers to ensure physical capabilities. OSHA references the American National Standards Institute (ANSI) Standard B56.1-1969. Section 6 clarifies that, “Operators of powered industrial trucks shall be physically qualified. An examination should be made on an annual basis and include such things as field of vision, hearing, depth perception, and reaction timing."

Employers should consider OSHA PIT regulations and the General Duty Clause, ANSI standards, and the Americans with Disabilities Act (ADA) requirements when evaluating physical qualifications. In short, if a worker demonstrates the visual, auditory, and mental ability to safely operate PITs, he or she is permitted to operate them.

Keys to Remember

OSHA requires employers ensure the safe use of forklifts and other powered industrial vehicles. Employers must ensure operators have the knowledge, skills, and physical ability to safely operate PITs.

Don’t do nothing

HR professionals should strive to resolve workplace problems quickly and restore a healthy environment for everyone. You can’t do that by ignoring complaints.

Doing nothing is also unwise because employers can be held liable for sexual harassment incidents they knew about or should have known about. Managers especially should be made aware they must report any off-the-record complaints to HR and not promise employees they’ll keep any information confidential.

Any details of a complaint, no matter how informally it’s received, should be documented. Even if the employee doesn’t want you to “do anything” or you don’t think there’s any substance to the claim, having it on record may be helpful in dealing with future incidents. It could show a pattern of behavior, for example.

Have a conversation

In the scenarios above, it may be wise to start informal, non-disciplinary conversations with both the supervisor and the executive. Frame these kinds of conversations around:

• Adhering to proper workplace expectations,
• Establishing professional boundaries, and
• Avoiding behavior that could be perceived as unwelcome.

Additionally, follow up with the reporting employee after a reasonable amount of time to show continued support and determine whether the issue has continued or escalated.

Anyone receiving a complaint whether it’s supervisor or someone in HR, should let the person know that it will be kept as confidential as possible, but they should never promise complete anonymity. Once you begin digging into a complaint, the identity of the complainant may be obvious based on the circumstances.

To foster an open culture in which employees feel that they can speak up without fear of reprisals, it’s important to have an anti-retaliation policy, and clear speak-up policies and procedures.

Time for training

If you’ve seen an uptick in complaints about inappropriate behavior, it may be an opportune time to require company-wide training for all employees on what is unprofessional workplace conduct and when it crosses the line and becomes illegal sexual harassment.

Key to remember: HR has a responsibility to investigate complaints, even when an employee says they don’t want anything done. An uptick in such complaints may call for anti-harassment training for everyone.

No particular form

Employees’ notice to employers may be either verbal or written. The notice may be informal and doesn’t need to follow any particular format.

Employers may not require employees to fill out a standardized leave request form for their military leave. They’re also prohibited from requiring employees to submit it to HR a certain number of days in advance of their military leave.

Employees don’t need to give their employers notice of their military leave when it’s scheduled for a time they’re not working (e.g., weekends). If, however, the uniformed service spans a period that overlaps with scheduled work, then employees must give notice of the military service that requires them to be absent from work.

How far in advance

Although the USERRA doesn’t specify how far in advance employees must give such notice, they should provide notice as far in advance as is reasonable under the circumstances. The Defense Department strongly recommends that employees give advance notice to their civilian employers at least 30 days before leaving for uniformed service when it’s feasible to do so.

Exceptions

Employees must give advance notice of pending military service unless giving such notice is prevented by military necessity, or is otherwise impossible or unreasonable under all circumstances. In those instances:

• Only a designated authority can determine “military necessity,” and such a determination isn’t subject to judicial review. In general, this includes situations where a mission, operation, exercise, or requirement is classified, or could be compromised or otherwise adversely affected by public knowledge. In certain cases, the Secretary of Homeland Security, in consultation with the Secretary of Defense, can decide that giving notice by intermittent disaster-response appointees of the National Disaster Medical System is precluded by “military necessity.”
• It may be impossible or unreasonable to give advance notice under certain circumstances. Such circumstances may include the unavailability of the employees’ employers or a requirement that the employees report for uniformed service in an extremely short time.

Other rules

Employees don’t have to ask for or get their employers’ permission to take military leave. Employees must only give their employers notice of pending service.

If employees tell their employers that they aren’t planning on coming back to work while they’re on military leave, employers may not terminate them.

Employees don’t waive the right to reemployment by telling their employers that they don’t intend to come back to work following the service. Service members are entitled to exercise their reemployment rights throughout the period in which they may report to work or apply for reemployment has passed.

Key to remember: Employers can expect employees to give them notice of military leave, but not in all cases.

FMLA paperwork rules

One of the first steps for employers is to determine whether employees meet the eligibility criteria to take FMLA leave. The next step is to inform employees by giving them an FMLA eligibility/rights and responsibilities notice within five business days. Employers might also give employees:

• The company's FMLA policy,
• An FMLA leave request form,
• A letter explaining the FMLA process, and
• A copy of the FMLA poster.

But wait! Where is the certification form? Since the leave would be protected by the FMLA, shouldn’t a certification form be included?

While there are several FMLA certification forms, none exist for adoption or otherwise bonding with a healthy child. Unless the child has a serious health condition, there should be no certification form required for adoption.

FMLA certifications exist for an employee’s own serious health condition, that of a family member, a qualifying exigency (military family leave), a caregiver of a current military member, and a caregiver of a veteran military member.

The Department of Labor’s Wage and Hour Division indicates in a fact sheet that:

“The employer may not request a certification for leave to bond with a newborn child or a child placed for adoption or foster care.”

Since there is no serious health condition and no family military leave involved, there would be no one who would complete a certification.

What to request

This doesn’t mean that employers are left with nothing. Employers may request reasonable documentation or a statement of a family relationship. This may take the form of a simple statement from employees or court documents.

Employers are entitled to examine official documents, but they must return them to employees.

Generally, employees get to choose what to give to employers. Employers may require employees to put their statements in writing.

Employers may have forms for this, and those forms may include language such as: “By signing this form, the employee understands that any misrepresentations made in the statement, or any other misrepresentation related to this FMLA request, may result in the denial of the request and discipline per company policy.”

The form can also certify, via employee signature, that all the statements made are true and accurate to the best of the employee’s knowledge.

Key to remember: Employers may not ask for a certification supporting FMLA leave taken for adoption, but may ask for documentation or a statement of the family relationship.

The story

Victor, the driver, obtained his Federal Motor Carrier Safety Act (FMCSA) variance in 2015. After receiving the paperwork documenting his medical clearance, Victor enrolled in a driver training school owned by the employer. Through this, Victor received over-the-road training from a trainer with the help of an interpreter, who communicated with him from the backseat of the vehicle throughout the process. After completing the program, Victor obtained his commercial driver's license and applied for an over-the-road driving position with the company.

About a week later, Erin, the company recruiter, emailed Victor, asking him to call that afternoon to speak with Jamie, the company’s Vice President of Safety and Compliance. Erin participated in the call, introducing Victor to Jamie. Jamie proceeded to ask about Victor’s ability to safely operate a truck and the previous accommodations he had received regarding the over-the-road training.

After discussing Victor’s previous accommodations, Jamie told him, “No, I’m sorry, we can’t hire you because of your deafness,” and ended the call.

The claim

The federal Equal Employment Opportunity Commission (EEOC) then sued the company on Victor’s behalf, alleging that it violated the ADA when it failed to hire him because of his deafness and need for a reasonable accommodation.

The employer claimed that all deaf drivers posed a direct threat to others on the road because of their condition. The employer, however, failed to individualize the direct threat analysis as to Victor, precluding it from establishing that defense. The employer also tried to claim that an accommodation would pose an undue hardship, but it expressly disclaimed any financial burden imposed by accommodating Victor and didn’t point to any reason why accommodating him would fundamentally alter its entire business, not just the training program.

The employer argued that it didn’t choose to hire Victor because he was deaf, but because of a consequence of his deafness. The court didn’t buy this. It held that there was no meaningful difference between taking an adverse action because of the job performance consequences of a disability rather than the disability itself, because the alleged consequences described Victor’s disability.

The ruling

The court found that the employer indicated that Victor wasn’t qualified for the truck driver position because he was deaf, and it provided no other reason as to why it didn’t hire Victor.

In addition to the monetary impact of the employer’s actions, it has to keep a record of any deaf truck driver applications with FMCSA exemptions and report those records to the EEOC no less frequently than every six months for three years.

EEOC v. Drivers Management, LLC; Werner Enterprises, Inc., Eighth Circuit Court of Appeals, No. 24-2286, July 10, 2025.

Key to remember: Dismissing an applicant based on a generalized safety theory can risk an expensive disability discrimination claim.

OSHA’s on top of it!

OSHA has even recognized the unique challenges women face in the workplace, specifically with properly fitting PPE. In fact, on December 12, 2024, the new PPE rule for the construction industry was officially published in the Federal Register with a full compliance date set for January 13, 2025. The new rule requires employers to ensure that protective equipment fits properly for any construction worker who needs it.

Increased risk in certain industries

Many industries have hazards ranging from exposure to toxic chemicals and radiation, to stress and fatigue, and even physical injuries. Most hazards pose the same risks to either gender; however, despite the advancements in technology and safety measures, the rate of work-related incidents for females remains high.

Women may face higher risks at work compared to men due to a combination of biological and physical factors, workplace design, and societal assumptions. These contributing factors can result in quicker fatigue, workplace harassment and violence, and mental stress. Studies show that women are often subjected to higher instances of harassment, discrimination, and violence, particularly in male-dominated industries. For instance, the U.S. Equal Employment Opportunity Commission (EEOC) data reveals that from 2018 to 2021, nearly 78.2% of all sexual harassment allegations in the workplace were reported by women.

Industries with especially high risks for ladies include:

• Manufacturing
• Agriculture and farming
• Transportation and truck driving
• Law enforcement
• Welding
• Construction and roofing
• Electrical
• Sawmills, papermills, and logging
• Telecommunications

Additional industries often overlooked as dangerous for women include:

• Teaching
• Medical and healthcare
• Social work

Though these are the more hazardous industries, all employers have a duty to ensure their hazard assessments consider unique challenges for all work groups – men, women, young workers, temporary workers, and more.

Keys to remember: Employers must recognize that women in the workplace face unique risks like ill-fitting PPE, harassment, and violence. They must offer effective policies, safety protocols, and appropriate equipment to ensure equal protection for all workers.

A Wake-Up Call on a Demo Job

We were overseeing a large demolition project involving concrete cutting, welding, and debris removal. Workers wore dust masks, but complaints started surfacing: dry throats, coughing, fatigue. One worker even developed shortness of breath by the end of the week. I suspected silica exposure, so we initiated personal air sampling—attaching pumps to several workers’ vests and collecting full-shift breathing zone data.

The lab results were sobering. Crystalline silica levels were more than double the OSHA permissible exposure limit (PEL). That day, we issued half-face respirators with P100 filters and began installing wet cutting systems and ventilation on enclosed floors. If we hadn’t sampled, we wouldn’t have known. And if we hadn’t known, we wouldn’t have acted.

OSHA's Framework for Exposure Monitoring

In construction, OSHA’s primary guidance for respiratory protection starts with 1910.134, which outlines the requirements of a respiratory protection program. But all of it hinges on one critical step: exposure assessment. Without proper sampling, there’s no way to justify the use—or non-use—of respirators.

OSHA requires employers to assess whether workers are exposed to airborne contaminants at or above action levels. If so, the employer must measure those exposures using validated sampling methods, such as those published by NIOSH or detailed in OSHA’s Technical Manual. This step is crucial not only for compliance but for protecting lives.

Sampling Methods in the Field

In construction, conditions change by the hour. That’s why air sampling needs to be task-specific and representative of real exposure. Cutting concrete, applying sealants, and stripping paint—each process may release different airborne hazards.

Personal air sampling remains the gold standard. Pumps clipped to the worker’s belt draw air through a filter near the breathing zone, usually for a full work shift. This data is then compared to OSHA’s exposure limits for substances like silica, lead, carbon monoxide, and others commonly found on job sites.

Beyond Data: The Respiratory Protection Program

If results show that exposure exceeds the PEL, employers must implement controls. Engineering and administrative controls come first, but when those aren’t enough, a full respiratory protection program is required.

That means selecting the right respirator for the hazard, conducting medical evaluations, performing annual fit tests, training workers on use and maintenance, and documenting it all.

Protecting Workers Starts with Knowing the Air They Breathe

As a safety professional, I’ve seen firsthand how easy it is to overlook airborne hazards in the chaos of a construction site. But respiratory exposures can be as deadly as any fall or trench collapse—they just take longer to claim their toll.

Air sampling isn’t about paperwork or appeasing an inspector. It’s about ensuring that every worker goes home with the same lung capacity they showed up with. That’s a responsibility we can’t afford to take lightly.

Do you have a question for our Compliance Experts? We encourage you to use Compliance Network’s Expert Help tool if you have safety or compliance questions. Ray Qureshi-Chishti and our team of Compliance Experts will respond within 24 business hours.

#1 Start here

First, OSHA requires that all operators must be trained prior to being allowed to operate forklifts. And the same thing goes for pallet trucks, order pickers, and stand-up units…. Any powered type of material handling equipment requires training.

But what does training entail? Well, the OSHA regulations are very specific. All operators must receive a combination of training. Training must consist of formal training, which is a lecture, discussion, interactive computer learning, video tape, written material, and so on.

They must also receive practical training, which means demonstrations performed by the trainer and practical exercises performed by the trainee.

And the third component is that operators must receive a performance evaluation. So, they must operate the equipment and be observed and evaluated before being considered trained per the OSHA standard.

Usually, you’ll introduce the concepts during the classroom portion of training, the more informational aspects, such as the OSHA requirements. Then you’ll use the practical part of training to familiarize trainees with controls, talk about load handling, and so on. With the practical part, it’s usually best to ramp up the training, meaning start with simple skills and then build on those.

#2 Train on these topics

Aside from requirements for how to do the training, OSHA gives us a detailed list of topics to cover during the training.

The main categories are truck-related and workplace-related topics. And remember that OSHA does require you to include information on OSHA’s forklift standard as part of the training program. This requirement can be easy to overlook, but a good way to approach it is in the classroom portion of the program.

Keep in mind that if a topic doesn’t apply to your trucks or workplace, you don’t have to train on it. For example, if you don’t have any ramps or hazardous (classified) locations in your facility, your forklift operators don’t need training on these topics.

Truck-related topics include the following:

• Operation instruction, warnings
• Differences between forklift and automobile
• Controls, instrumentation
• Engine, motor operation
• Steering
• Visibility, restrictions
• Fork, attachment operation
• Capacity
• Stability
• Inspection, maintenance
• Refueling, recharging
• Operating limitations
• Operator’s manual instructions, precautions

Workplace-related topics are examples like these:

• Surfaces
• Load composition
• Load handling
• Pedestrians
• Narrow, restricted areas
• Hazardous (classified) locations
• Ramps
• Poor ventilation
• Other hazards

#3 Determine success

The trainees must successfully complete the formal and practical instruction, but how you determine success is up to you. For the classroom portion, you could give a written or oral test or otherwise evaluate the trainees’ knowledge. For the practical training, the trainee must be able to safely perform all the operations used on the job.

#4 End here

An evaluation of the operator’s performance in the workplace must be conducted at the time of initial training. And an evaluation is required to determine the effectiveness of any refresher training.

Also, you must conduct an evaluation at least every three years. This means that at least once every three years every operator must be observed while they operate in the workplace under actual workplace conditions. During the evaluation, the operator must also be able to answer pertinent questions to demonstrate they have the knowledge to operate the forklift safely.

A key point to note here, this evaluation must be more than just a written or verbal test. The employer must observe the operator in action performing all typical tasks related to running the forklift. And, going back to where we started, the evaluation must be conducted by someone who has the knowledge, training, and experience to evaluate the truck operator’s competence.

Document the evaluation — this means placing a record in your training file that includes the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training or evaluation.

Action item

This may be a good time for you to review your options for training forklift operators to ensure they’re meeting these guidelines. And, it’s always a great idea to have all your training procedures in written format for consistency.

Key to remember

Training forklift operators is an OSHA requirement. Follow this step-by-step guide and you can do it in-house.

COVID-19 R&R provisions

The COVID-19 R&R provisions currently found in the Code of Federal Regulations (CFRs) call for over 562,000 covered healthcare employers to:

Proposed changes

OSHA specifically proposes to remove:

Why the changes?

OSHA offers 12 reasons for removing the R&R provisions that are in subpart U:

• When OSHA stopped enforcing the bulk of subpart U in 2021, the R&R provisions were no longer part of an integrated regulatory scheme;
• The R&R provisions are of lesser utility since COVID-19 vaccines are widely available and the public health emergency has ended;
• The Centers for Disease Control and Prevention (CDC) and medical professionals now treat COVID-19 cases and reporting more like flu and respiratory illnesses;
• Most COVID-19 testing is now through self-administered tests at home, and there’s no expectation to report positive test results;
• The accuracy of data collected by employers under the COVID-19 log provision has eroded;
• The importance of an additional recordkeeping tool solely for COVID-19 is questionable;
• Clearing out the recordkeeping provisions would relieve employers from recording work-related cases on two separate sets of forms (injury/illness forms and the COVID-19 log);
• Discarding the reporting provisions does not eliminate the obligation to report to OSHA any work-related cases of COVID-19;
• The lengthy incubation time for COVID-19 would make it uncommon to cause hospitalization within 24 hours of exposure (and mandatory reporting), but the same is true of other respiratory illnesses;
• Since employers’ knowledge about COVID-19 cases among their employees is limited, reporting hospitalizations/fatalities to OSHA would be similarly constrained;
• Given CDC’s phase out of many COVID-19-related recommendations for healthcare, the need for COVID-19 reporting to trigger an immediate OSHA inspection has waned; and
• OSHA has no new evidence that the R&R provisions in subpart U provide meaningful assistance to employers at this point.

Therefore, OSHA says it’s no longer appropriate to apply R&R regulations to COVID-19 that are more burdensome than those already prescribed under 29 CFR 1904 for other infectious diseases. Part 1904 is the Recording and Reporting Occupational Injuries and Illnesses standard. The agency argues that 1910.502(q)(2)(ii), (q)(3)(ii) - (iv), and (r) should be removed from the CFRs.

Also, Part 1915, 1917, 1918, 1926, and 1928 references to 29 CFR 1910 subpart U are outdated, contends OSHA, because they refer to provisions in the CFR that no longer exist. Omitting these references would be purely administrative.

Heads up on another rule

Given the new administration, it’s unknown whether OSHA would withdraw its Infectious Diseases rulemaking from the agenda. Yet, a statement in the latest COVID-19 proposal teases stakeholders about the possibility of an Infectious Diseases proposal.

The preamble text states, “On January 15, 2025, OSHA terminated the [permanent COVID-19 for Healthcare rulemaking] on the basis that the COVID-19 public health emergency was over and any ongoing COVID-19 hazards would be better addressed in a rulemaking focusing on the broader hazard of infectious diseases … To the extent additional [R&R] tools are necessary and appropriate, they could be considered as part of a broader rulemaking that would facilitate employer adoption of more cohesive and consistent [R&R] policies to address workplace-transmissible diseases.”

Key to remember

OSHA proposed to discard the R&R provisions of its COVID-19 regulations in 29 CFR 1910 subpart U. These regulations are more burdensome than R&R requirements for other infectious diseases, argues OSHA. Comments are due September 2nd.

What are MSDs?

OSHA defines MSDs as disorders of the muscles, nerves, tendons, ligaments, joints, cartilage, and spinal discs. Examples include:

MSDs are prevalent in the workplace. The Bureau of Labor Statistics reveals in its latest data for 2021 and 2022 that MSDs accounted for 22 percent of all injuries/illnesses with days away from work in the U.S. This figure doesn’t include countless MSDs without days away.

Rule’s history

The timeline for this rule spans almost 30 years. Major highlights include:

Why OSHA originally wanted the column

According to the agency, an MSD column:

Latest decision

The 2010 proposal would have amended the OSHA 300 Log by adding a column that employers would use to record work-related MSDs. On July 1, 2025, OSHA withdrew that proposal.

The move does NOT change employer obligations to complete and retain occupational injury/illness records under OSHA's regulations. Terminating the proposal also does not change the recording criteria. OSHA’s 29 CFR 1904 remains as-is, and work-related MSDs must be recorded as usual.

Why the withdrawal?

OSHA explains that its authority to issue an MSD column rule stemmed from sections 8 and 24 of the Occupational Safety and Health Act. These sections empower the agency to issue regulations “necessary or appropriate” to carry out its responsibilities. This includes regulations that ensure employers keep accurate injury/illness records.

OSHA now officially concludes that an MSD column rule would NOT be reasonably related to sections 8 and 24 of the Act. The agency has determined that the record does NOT demonstrate that an MSD column would:

• Significantly improve the national injury/illness statistics — While the MSD column would help to estimate the number of non-days-away MSDs, OSHA claims that data from the column would add only marginally to the information already available.
• Be necessary to assist OSHA in enforcement and outreach — The column offers nothing of significance that goes beyond the case description data, the agency contends. Knowing the total number of MSDs at an establishment would be of little practical value in identifying hazards or causes of MSDs in the workplace, OSHA says.
• Provide useful information to employers and workers at the establishment level — The column does not offer the nature or cause of the disorders, and the total number of MSDs is easily obtainable without the column, argues OSHA.

Key to remember

OSHA withdrew the proposal to amend the OSHA 300 Log by adding a column that employers would use to record work-related MSDs.

Other safety tips

Tornado safety involves three phases: Preparing in advance, Staying safe during the storm, and Staying safe after the storm.

Employees should prepare a plan and an emergency kit, monitor weather conditions during thunderstorms, and know the best places to shelter wherever they work.

Employers should prepare a business continuity plan for dealing with the aftermath, from cleaning up the site to resuming business operations.

During a tornado warning, employees should remain in a shelter until given an all-clear signal. At a fixed worksite, this may come from an employer announcement. At other locations, employees may need to monitor conditions on their phone or radio.

After the storm, employees may need a way to communicate if they are trapped or injured. They should also watch for hazards such as downed power lines, gas leaks, building damage, or debris.

Key to remember: Tornadoes can happen at any time, but Spring is most active, and employers should prepare to protect workers.