SAFETY & COMPLIANCE NEWS
Keep up to date on the latest developments affecting OSHA, DOT, EPA, and DOL regulatory compliance.
SAFETY & COMPLIANCE NEWS
Keep up to date on the latest developments affecting OSHA, DOT, EPA, and DOL regulatory compliance.
Employees (and some employers) in the private sector might be surprised to learn that no federal law requires employers to give employees paid holidays, or even unpaid holidays. Many businesses are open on holidays, and employees are working. Restaurants, for example, do a hearty trade on Thanksgiving, and most retailers are open and busy the following day. If hourly, nonexempt employees are working, they must be paid.
Federal government employees, on the other hand, are entitled to 11 paid, federally recognized holidays in the U.S.:
Private sector employers that don’t give employees any (or few) paid holidays could find it hard to attract and retain quality workers. They might give employees some holidays off, but not all. Employers can benefit from including a floating day to accommodate the many different holidays employees might celebrate.
Employers may (and often do) have policies that require employees to work the day before and after holidays to receive holiday pay as part of company benefits programs.
Company policies can also require that employees work for the company for a certain amount of time before being eligible for paid holidays, such as during onboarding periods.
Those types of policies should be well crafted, identify what holidays are included, and indicate any employee eligibility criteria. The policies should also be well communicated so employees know what to expect.
Rhode Island and Massachusetts have laws governing holiday pay.
Key to remember: Employers are not required by federal law to give employees holidays off, either paid or unpaid. Doing so can help a company be competitive.
The severity of an injury is partly defined by whether medical treatment, like physical therapy, is required. However, preventative exercises under a wellness program are not usually medical treatment, even if recommended in response to an injury.
OSHA defines an injury or illness as an “abnormal condition or disorder” but clarified that muscle soreness from performing a new task is not “abnormal.” However, if an employee reports tingling, numbness, or pain (which can be subjective) and if the discomfort is strong enough to need physical therapy (which counts as medical treatment), then an abnormal condition presumably exists and the medical treatment makes the case recordable on the 300 Log.
However, many employers recommend simple stretches or exercises as part of a wellness program. Employers suggest these exercises for all employees who perform certain job duties to help prevent disorders from developing. A recommendation to perform those exercises in response to reported discomfort is not “medical treatment,” according to OSHA. On the other hand, if the recommendation is to use different exercises or to increase the frequency of the wellness exercises, that counts as medical treatment and would make the case recordable.
For example, suppose that, as part of a wellness program, employees are advised to perform specific stretches at the start of the shift and after lunch. However, an employee who reported significant discomfort receives a recommendation to perform the stretches hourly. That increased frequency counts as medical treatment.
In an enforcement memo issued May 2, 2024, OSHA noted that, “Exercise and stretching that are generally part of safe work practices commonly recommended for anyone engaged in certain tasks or working with certain equipment are not recordable as medical treatment.”
As a related caveat, however, an OSHA interpretation from January 25, 2010, clarified that “Simple subjective signs, such as an employee’s statement that he or she feels pain or other symptoms such as muscle soreness, of and by themselves, would be conclusive in determining that an abnormal condition exists.”
This raises the question of how an employer should determine whether an abnormal condition exists. Rather than focusing on the condition, OSHA advises employers to focus on the treatment. Employers are usually trying to evaluate recordability on the 300 Log. Even if a condition is “abnormal,” it would not be recordable if no medical treatment or restrictions are needed. For related information, see our article Can aches and pains become recordable on the OSHA 300 Log?
Finally, an OSHA interpretation dated December 14, 2015, responded to a question of whether advice to use wellness stretches would count as medical treatment. OSHA said no, stating that if “there is no change in the course of stretching exercises to specifically address the discomfort” then a recommendation to “continue with the already existing program of stretching does not constitute medical treatment beyond first aid.”
In short, employers may establish recommended exercises or stretching for all employees performing certain job tasks, at a specified frequency. If an employee reports discomfort, then a recommendation to use those wellness exercises at the same frequency is not medical treatment.
Key to remember: Physical therapy such as exercises or stretches to treat a condition would be medical treatment. However, recommending that an employee use preventative wellness stretches or exercises that are suggested for all workers is not medical treatment.
Carriers that do not follow a driver qualification (DQ) checklist for each hire add significant risk to their operation. Missing even one step may result in a multi-million-dollar verdict, violations, and loss of business.
To avoid compliance and risk management gaps, adopt safety management controls (policies and procedures) with specific hiring steps that exceed the regulations. The result is a documented and systematic evaluation of every potential driver’s qualifications to operate safely.
Carriers may wonder “Why do more than the regulations require?” or “How important is consistent execution of company policies?” These are two questions answered by the American Transportation Research Institute (ATRI)’s 2022 study, Understanding the Impact of Nuclear Verdicts on the Trucking Industry.
In the study, defense and plaintiffs’ attorneys agreed on two things regarding protecting carriers from nuclear verdicts:
Another key point from the study was that almost any failure to follow the Federal Motor Carrier Safety Administration Regulations (FMCSRs), which are minimums, will be a focus of litigation. Conversely, carriers need to show that their procedures exceed the regulations and they uphold their duty to select the safest possible drivers. A well-constructed checklist accomplishes both.
An example of a checklist is at the following link:
1. Increased risk of litigation
Failure to comply with the FMCSRs, along with missing clues about unsafe driving history, becomes the basis for a negligent hiring claim and excessive verdict.
Some industry best practices when evaluating prospective drivers include:
2. Audit fines
Failing to maintain proper DQ files can result in non-compliance with the FMCSRs. This can lead to significant fines and penalties. For example, record-keeping penalties have to $1,544 per day, with a maximum penalty of $15,445.
Common driver hiring audit violations include:
3. Damage to reputation
Headline crashes can severely damage a company’s reputation and ability to secure future business. Details of what contributed to a crash are often part of the news. Press disclosing a carrier’s poor hiring practices can result in customers losing trust and wanting to avoid vicarious liability (being sued because of a carrier’s crash while hauling their goods).
Key to remember: To reduce the risk of fines, litigation, and lost business, develop and always follow policies and procedures that exceed the FMCSRs.
Cargo security and theft are significant concerns for the transportation industry in Canada. With the rise in organized crime and sophisticated tactics, ensuring the safety and security of goods during transit has become more challenging than ever. Cargo theft has a major impact on your business, leading to financial losses, increased insurance premiums, and damage to your reputation. The cost of stolen goods is just the beginning; you also face other expenses related to investigations, recovery efforts, and potential legal issues. Moreover, the loss of trust from your customers can have long-term consequences for your operation. What measures you can take to combat it?
Cargo theft in Canada is a growing concern, particularly in areas with high volumes of freight traffic and extensive transportation infrastructure. The primary hotspots for these crimes include Mississauga, Brampton, and Montreal. These cities are especially vulnerable due to their strategic locations and the presence of numerous warehouses and distribution centers.
Several organizations in Canada are dedicated to combating cargo theft and providing support to affected businesses, such as the Insurance Bureau of Canada (IBC) or Equite an association that maintains a national database of cargo theft incidents and assist in the recovery of stolen goods.
To address the growing threat of cargo theft, implementing various measures to enhance cargo security is key. These measures can include:
As technology advances, so do the tactics used by cargo thieves. You must stay vigilant and adapt to new threats to keep cargo secure. The use of artificial intelligence and machine learning to analyze data and predict potential theft incidents is an emerging trend that could help in proactively addressing security challenges. Criminals have adapted, targeting several types of goods, and using more calculated methods to conduct thefts.
CargoNet, an organization that aggregates and analyses cargo theft in Canada reported a rise in incidents of 14 percent in the third quarter of 2024 compared to the same period in 2023.
Cargo security and theft in Canada pose significant challenges for the transportation industry. However, with the implementation of enhanced security protocols, advanced tracking systems, collaboration with law enforcement, and continuous training and awareness, you can better protect your cargo and mitigate the risks associated with theft.
Key to remember: Staying informed about the latest trends, ahead of potential risks and being prepared can make all the difference in preventing cargo theft.
Are your aboveground storage tanks (ASTs) engineered to avoid overfills during oil transfers? EPA issued a technical alert to highlight the importance of overfill prevention measures. Having these systems is not enough, though. They must be properly designed, operated, maintained, and inspected.
The 13-page alert (EPA 540-S-24-001) aims at owners and operators of “substantial harm oil storage facilities.” These facilities are often covered by 40 CFR 112, including both the oil Spill Prevention, Control, and Countermeasure (SPCC) regulations and oil Facility Response Plan (FRP) regulations.
Implementing overfill prevention is mandated by part 112. That’s because these critical systems alert you to potential container overfills. Overfills are often the cause of oil discharges.
Overfills of large ASTs during high-volume oil transfers have led to:
The alert showcases two headline-making incidents to illustrate the danger:
Overfills can happen, but they are preventable! The alert explains that overfill prevention systems commonly used at facilities monitor liquid levels in tanks. These prevention systems include:
The trouble is, when these systems fail, overfills can still occur. Therefore, it’s critical to also take other measures. Adequate system maintenance, inspection, implementation, nighttime security lighting, training, and procedures are examples.
So, oil discharges to the environment and waterways may be prevented and/or minimized with the help of overfill prevention systems. At the same time, however, owners and operators need to implement:
EPA’s technical alert addresses adequately designed, implemented, and maintained overfill prevention systems. The alert explores:
Thirteen references and their links are included. Two worth noting are:
If you have an SPCC- and/or FRP-regulated facility, EPA urges you to review the alert. You should also consider whether more action is needed to address these requirements at your oil storage facility.
EPA issued a technical alert to highlight the importance of overfill prevention measures. The agency says they must be properly designed, operated, maintained, and inspected.
I understand that managing people is a tightrope walk. HR professionals need to f ind a balance between what employees want and what leadership will approve, or what’s good for employees versus what they want (or say they want).
I was reminded of that balancing act this past month when I received the same question from two employers in two different states. They both wanted to know how far a designated outdoor smoking area must be from their workplace because management wanted to provide employees with a place to take smoke breaks.
I understand why an employer might ask this question. According to the Centers for Disease Control and Prevention (CDC), there are no states in the U.S. where smoking is generally allowed in the workplace. Most states have, in fact, enacted comprehensive smoke-free laws that prohibit smoking in workplaces.
The CDC also reports that an estimated 11.5 percent (28.3 million) of U.S. adults currently smoke cigarettes. And some of them must be working for these two inquiring employers.
I told both employers that some states and municipalities have strict rules about how far a smoking area must be from a building, while others rely on the OSHA recommendation of “a reasonable distance.” And since the federal government has decided that for its office buildings, 25 feet is a “reasonable distance,” that has become the generally accepted answer when states and cities don’t specify.
As a health-conscious person working for a company that provides safety and wellness information, my gut reaction to these questions was: DON’T DO IT! I wanted to recommend that these employers put their time and resources into helping employees quit smoking, rather than creating a space for them to continue.
But then the reality of their situations hit me. These were employers who either saw a need or received a request for a designated smoking area, had made the decision to create one, and wanted to be sure they were compliant when they did it. I get it. Every workplace is different. Good employees are hard to find (and keep) so maybe creating a smoking area is a gesture of goodwill intended to foster loyalty.
I did suggest, however, that the employers broaden their wellness programs to help smokers quit even as they create a designated smoking area. That message says: “We’re here for you now, and we’ll support you when you’re ready to quit.” That’s walking the tightrope!
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