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Keep up to date on the latest developments affecting OSHA, DOT, EPA, and DOL regulatory compliance.
Two motor carriers recently learned the hard way why great care should be taken with government mail following a DOT audit or investigation.
The companies — one a bus operator based in Texas and the other a freight hauler from Illinois — both mishandled the Notices of Claim that the Federal Motor Carrier Safety Administration (FMCSA) mailed them last summer.
A Notice of Claim (NOC) is a letter notifying a company that they’ve been fined for violations. In this case:
In both cases, the FMCSA sent the NOCs by certified mail shortly after performing an audit of the companies’ safety programs.
When a company receives a NOC, it can respond in one of three ways:
Whichever path a company chooses, it must respond in writing within 30 days after the NOC is received. If the company fails to respond, it waives its right to contest the fine and will owe the full amount.
In this case, both motor carriers wanted to contest their fines but neither responded within 30 days, and neither had an excuse that held any merit with the judges overseeing the cases:
In each case (both finalized this spring), the judge declared that the entire fine was “due and payable immediately” because the motor carrier had defaulted when it failed to reply to the NOC.
If you’re ever the target of an FMCSA audit or investigation and violations are found, be on the lookout for an important letter from the agency. It will typically be sent to your principal place of business and require a signature from whoever receives it.
Once you do receive an NOC, the 30-day clock starts ticking. If you want to contest the fine or seek arbitration (hint: it’s a good idea), be sure to respond in writing before the 30-day deadline!
Key to remember: After a DOT audit, be sure to watch for critical letters or communications from the agency, because missing something important could mean paying the full amount of any fine that’s levied against you.
It’s time for that special event that happens once every four years, often testing the endurance of the participants who’ve spent the prior years preparing for this very moment. No, it’s not the Summer Olympics, though that’s a great guess. It’s the Chemical Data Report!
Under the Toxic Substances Control ACT (TSCA), the Environmental Protection Agency’s (EPA’s) Chemical Data Reporting (CDR) rule requires manufacturers (including importers) to report information on the production and use of chemicals in commerce if they meet certain production volume thresholds at any one site. The submission period for the 2024 report runs from June 1 to September 30, 2024.
Use these tips to help you complete a Chemical Data Report worthy of a gold medal.
The TSCA Chemical Substance Inventory (TSCA Inventory) lists the covered chemical substances. Generally, the production volume threshold is 25,000 pounds or more of a chemical substance at a site. However, a reduced reporting threshold (2,500 pounds) applies to chemical substances subject to:
Further, certain full and partial exemptions apply to facilities based on the:
To confirm whether your facility must report:
The CDR rule requires facilities to report the total annual production volume of covered chemical substances for each calendar year since the last principal reporting year.
In other words, if a chemical substance at your facility meets or exceeds the corresponding reporting threshold during any calendar year covered by the report, you must include the total annual production volume of that chemical for every covered calendar year.
For example, you must list on the 2024 report the production volumes of every reportable chemical substance for 2020, 2021, 2022, and 2023.
All CDR data must be reported electronically on Form U (EPA Form 7740-8) through e-CDRweb on EPA’s Central Data Exchange (CDX) system. Reporting is site-specific, so if your organization has multiple sites with reportable chemicals, you must submit a Form U for each site.
Keep in mind that you submit only one form per site, so all reportable chemical substances at a specific site are listed on the same Form U. You may have to submit multiple forms only if you have more than one site covered by the CDR rule.
To submit a Chemical Data Report, you must first register with the CDX system and be approved by EPA. Plus, you must register the name of the organization on whose behalf you’re submitting a Form U. If you’re already registered on CDX, you can add the CDR reporting flow to your current registration.
Because each type of user role has varying permissions, it’s essential to register for the right one. User roles include:
Only Primary Authorized Officials may submit initial Chemical Data Reports. So, if you’re the one who will submit Form U, confirm that you’re registered as a Primary Authorized Official.
The CDR rule requires organizations to keep records of all CDR information reported on Form U to EPA for at least five years (711.25). The five-year timeline begins on the last day of the submission period.
Additionally, you may have to amend Form U after submitting the initial report. This can apply if:
Key to remember: The Chemical Data Report can be a major undertaking, but with these tips, you can cross the finish line with a report worthy of a gold medal.
I considered it a major technological breakthrough the first time I scanned a QR code with my phone in the grocery store to get the sale price on an item I was purchasing. And my husband was impressed with my savvy the first time we got into a sporting event with just a code on my phone rather than paper tickets.
While those uses of smartphone technology might not seem advanced to you, you might be shocked to learn it is just as simple to report workplace harassment.
The “Know Your Rights: Employment Discrimination is Illegal” poster released in 2023 by the Equal Employment Opportunity Commission (EEOC) includes a QR code that goes directly to a website with instructions on how to report a charge of discrimination.
The poster, which replaced the “Equal Employment Opportunity is the Law” poster, also explains employee rights in plain language and might open the eyes of employees that the harassing behavior they are witnessing or experiencing is indeed unlawful discrimination. The poster uses plain language to present information about discrimination and:
If your company’s response to employee claims of sexual harassment in the past has been to pressure victims to deal with it internally or to simply ignore it and hope it goes away, that QR code might be cause for alarm.
Previously, employees may have been uncertain about where and how to report harassment. They may have believed their complaint would be ignored, or feared for their jobs if they went to their supervisor or HR department. The QR code on the new poster, however, provides a convenient avenue for reporting harassment without going through internal channels.
As people encounter QR codes more frequently, from grocery stores to sporting events and beyond, they will feel more comfortable using them. That may increase the number of people reporting illegal harassment to the EEOC.
To lower the chances of your employees scanning the QR code on the EEOC posting, make it clear that in your organization even a small instance of misconduct will be addressed promptly. Provide multiple channels for reporting harassment internally. If a complaint is brought to the attention of management, it should be investigated and resolved quickly and lawfully, as well as within the guidelines of company policy.
Up to a third of adults use cannabidiol (CBD) products, which are marketed as a treatment for health conditions including anxiety, pain management, and insomnia.
While CBD products are legal, employees may not realize that they carry risks for their health and career.
CBD is a chemical present in cannabis plants, including hemp and marijuana. Another chemical in cannabis, THC, causes the high feeling. Hemp has a THC content of .03 percent or less, while marijuana contains more than .03 percent.
The small amount of THC in CBD products made from pure hemp won’t bring a high, but using over-the-counter CBD products isn’t without risks.
Purity in question
The danger of using a CBD product relates to the lack of regulation for the CBD industry. There is one medication derived from cannabis that has been approved by the Food and Drug Administration (FDA), Epidiolex, and it has been shown to be effective in treating childhood epilepsy.
CBD products sold in gas stations and strip malls are typically marketed as supplements rather than medication, however. They are not regulated by the FDA and could be contaminated with THC or other chemicals.
One study found that less than a third of CBD products had accurate information about CBD concentration levels on the label.
Drug test dangers
Because CBD products may be contaminated with THC, they could bring a positive drug test for marijuana.
If use of marijuana, as shown by a positive drug test for THC, violates your workplace drug and alcohol policy, employees might be surprised that their use of a CBD product puts them at risk of a policy violation.
It’s definitely a policy violation if your workers test positive and are commercial drivers covered by federal drug and alcohol regulations for the transportation industry. The Department of Transportation (DOT) makes it clear that covered drivers are not to use Schedule 1 drugs, including marijuana.
A tainted CBD product could contain enough THC to bring a positive test result for marijuana. The DOT notes that the use of CBD is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result.
The test will be considered positive, even if the employee claims a CBD product was the cause. The covered driver will face consequences for the positive test and cannot be allowed to drive until the return-to-duty process has been completed.
Health risks
In addition to bringing a positive drug test that could have an impact on an employee’s career, using CBD products carries health risks. The Substance Abuse and Mental Health Administration (SAMHSA) notes these drawbacks:
Accommodation matters
Employees interested in using CBD for relief of medical issues should check with their doctor, who can consider how it will interact with other medications and discuss other issues specific to the individual’s medical history.
Workers who are concerned that CBD use could impact their career can have a private discussion with their supervisor and human resources. They can talk about side effects and drug testing concerns and how this relates to the individual’s job duties. This discussion is part of the accommodation process under the Americans with Disabilities Act (ADA).
Each situation is different, and the outcome will depend on how CBD use affects their work and whether an accommodation is possible. If CBD use can’t be accommodated, the employee can check with their doctor to see whether there is another effective treatment for their condition.
Getting the word out
To make workers aware of the risks involved with CBD use, bring up the topic. Information about CBD can be communicated:
Key to remember: CBD is popularly used for treating a variety of medical issues, but employees should be aware that it could bring a positive drug test or carry health dangers.
Want to learn what other companies are doing to prevent confined space fatalities? Or are you interested in helping prevent one of the approximate 127 annual confined space fatalities? Then read on!
Any employer interested in preventing workplace hazards can participate in the May 6-10, 2024, National Safety Stand-Down. Although this year’s topic is preventing Falls in Construction, employers can address confined space hazards as well with this initiative.
Safety stand-downs give employers an opportunity to break from the normal routine and focus on various safety issues, like confined spaces. It’s a voluntary, dedicated time to communicate with employees directly about identifying and reducing hazards that may cause serious injuries and fatalities.
All Employers could benefit by participating in the National Safety Stand-Down include but most certainly:
Employers are free to plan stand-down activities that apply to their workplace and that best fits with their schedules and operational commitments. In the case of confined spaces, employers can engage workers to perform confined space assessments and inspections, develop entry procedures and rescue plans, or ensure signage is accurate and updated. In other words, whatever may be needed to identify and remediate hazards or encourage open communications with workers about confined space safety.
This is also a great time to provide refresher training. A great starting point could be reminding workers of the differences between confined spaces and permit-required confined spaces. Additionally, you can have discussions with workers about the common types of deadly confined spaces and how to protect themselves.
Here are some talking points:
1. OSHA defines a confined space in 1910.146 as a space that:
2. Permit-required confined spaces (permit spaces) are confined spaces that have one or more of the following characteristics:
3. The most common types of confined spaces involved in occupational deaths include:
4. Worker protections in and around confined spaces include:
Key to Remember: Employers should set time aside during the week of May 6-10, 2024, to join the National Safety Stand-Down and stand up to confined space hazards.
When a court opinion begins with “This case illustrates one reason why the Americans with Disabilities Act (ADA) exists,” you know you’re in trouble.
Employees must miss work sometimes. When that leave is for valid reasons, like a disability, employers must ensure their disciplinary steps aren’t an ADA violation. Employers with no-fault attendance policies should not apply attendance points to such ADA-related absences, one employer learned.
Employee collapsed at work
Brandon was a solid employee who had a chronic disease that caused kidney stones to develop. About once every two years, he developed a large kidney stone that required surgical removal.
The company had a policy that counted any unexcused absence, tardy, or leave early as an attendance point. The company fired employees who accrued seven points in a year. Employees could accrue just one point without applying for an ADA accommodation. Ty, Brandon’s manager, was not aware that leave was available for those with an ADA disability.
Brandon had one accrued attendance point before he accrued four points because of his condition. When his doctor recommended that he take about a week off, he instead returned to work to avoid any further points.
The day he returned, however, Brandon collapsed at work in excruciating pain and was transported by ambulance to the hospital. The general manager rode with Brandon, where he learned of Brandon’s condition. The company assessed only one attendance point for the two days Brandon was absent.
Seventh attendance point meant termination
Brandon’s doctor told him he needed surgery to remove a large stone. Ty warned Brandon that a seventh point would lead to termination.
Because Brandon needed surgeries to remove the stone, he:
Ty told him he could reapply in 60 days. Instead, a lawsuit ensued.
Employer didn’t try to find a solution
In court, the company claimed that, because Brandon did not provide a return-to-work date, he requested unlimited leave, which is not a reasonable accommodation. The company did not, however, ask when Brandon could return to work.
In ruling for Brandon, the court didn’t buy the company’s argument. The history showed that Brandon returned to work promptly. The court also said that the company failed to engage in the ADA’s interactive process (i.e., conversation with an employee to find a possible reasonable accommodation), and it chose to remain in the dark about when Brandon could return to work.
EEOC v. Keystone RV Company, Northern District of Indiana, No. 3:22-CV-831, March 27, 2024.
Key to remember: Time off can be a reasonable accommodation under the ADA, and employers should not apply attendance points to such time off.
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