A brief lesson in FMLA’s special rules for schools

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.

1. Environmental responsibility impacts your brand reputation

Sustainability is no longer just a CSR talking point. It’s a core business differentiator. As a management or EHS leader, you’re often on the frontlines of implementing the visible changes that shape public perception. Recycling programs are a low-barrier, high-impact initiative that sends a clear message to customers, investors, and employees: we walk the talk.

Failing to prioritize environmental responsibility puts your company’s reputation at risk—especially in industries with public visibility or regulatory scrutiny. Forward-thinking competitors are already using circular economy models and zero-waste initiatives to win market share.

Champion a program that reflects your company’s values and positions you as a sustainability leader in your field.

2. Compliance with local, state & federal regulations

Recycling is no longer a “nice-to-have.” Many jurisdictions now require commercial recycling, especially for packaging waste, e-waste, and food scraps. Increasingly, regulations also demand data transparency—such as tracking waste volumes, diversion rates, and sustainability goals.

Supervisors in environmental and safety roles are responsible for ensuring compliance and minimizing risk. Violations can result in hefty fines, bad press, or loss of contracts.

Stay ahead of compliance trends and implement a recycling program that satisfies current and future requirements while keeping audit-readiness top of mind.

3. Cost savings & operational efficiency

Landfill disposal is becoming more expensive due to tipping fees and transportation costs. By diverting materials through recycling or reuse programs, companies can reduce both their environmental footprint and their operational spend.

In addition, smart material handling and waste segregation can lead to process improvements—less clutter, fewer hauling pickups, and even opportunities to monetize recyclable materials like scrap metal, cardboard, or used electronics.

Use data from your waste audits and vendor reporting to identify high-volume waste streams and optimize for both cost reduction and resource efficiency.

4. Workforce engagement, retention & culture

Today’s workforce, particularly younger employees, is drawn to employers who align with their values. A clean, green workplace that visibly supports recycling and sustainability reinforces a positive culture, boosts morale, and improves engagement—especially when employees feel like they’re contributing to something bigger.

Recycling initiatives are also an easy win for cross-departmental engagement. Whether through green teams, signage campaigns, or employee challenges, these programs offer hands-on ways to involve everyone.

Build internal buy-in by showing how your initiatives support company values, employee wellness, and sustainability goals by fostering shared responsibility.

5. Alignment with data-driven ESG & sustainability goals

In 2025, companies are under increasing pressure from stakeholders to report measurable progress on ESG (Environmental, Social, Governance) initiatives. Waste reduction, recycling rates, and landfill diversion metrics are among the top data points requested in annual sustainability reports and RFPs.

Supervisors and EHS leaders are often the owners of the data. You're tasked with tracking, verifying, and reporting on these outcomes. Without a structured recycling program in place, those metrics are impossible to capture—and your ESG report falls flat.

Establish a system for measuring, improving, and communicating progress toward zero-waste or landfill diversion targets, and support leadership in meeting ESG benchmarks.

Key to remember: Embracing workplace recycling in 2025 isn’t just good for the planet—it’s a smart move that drives innovation, saves money, and positions your company as a leader in sustainability.

The importance of CPR and early defibrillation

For every minute a patient is in cardiac arrest, their chances of survival decrease dramatically. When a patient doesn’t have a pulse and isn’t breathing, CPR should be performed until an AED is available. It’s important to note that CPR alone does not restart the heart. CPR is an oxygen circulation procedure. AEDs, on the other hand, are meant for lifesaving intervention.

CPR and early defibrillation are vital components of the emergency medical services (EMS) chain of survival that increases the odds of cardiac patient survival. However, according to the American Heart Association (AHA), even the best CPR can’t provide enough circulation of oxygen to the brain and heart for more than a few minutes. In fact, a patient whose brain is deprived of oxygen for 10 minutes or more seldom recovers.

Signs and symptoms of cardiac compromise

Just like a reliable vehicle, the circulatory system is the human body’s blood transportation system, and the heart is the engine. Amazingly, the heart generates its own electrical impulses, pumping in a regular, rhythmic manner. As with any engine, the heart requires a certain amount of pressure to function and doesn’t work well when clogged with grease or debris. The most common causes of sudden cardiac arrest include a heart attack, electrocution, and asphyxiation — all of which could occur in the workplace. Common signs and symptoms include:

• Chest pain accompanied by a crushing or squeezing sensation,
• Pain that radiates to the jaw or arm,
• Irregular pulse and/or abnormal blood pressure,
• Shortness of breath,
• Cool and sweaty skin,
• Nausea and vomiting, and
• Anxiety or feeling of impending doom.

CPR provides the pressure for the body’s “engine” to oxygen circulating, while an AED provides the electrical impulses to keep the engine pumping.

OSHA requirements regarding CPR

OSHA 1910.151 requires first aid treatment be provided in the absence of an infirmary, clinic, or hospital in near proximity to the workplace used to treat injured employees. This may include assisting a victim of cardiac arrest using CPR or defibrillation.

OSHA requirements for CPR and defibrillation differ considerably. Standards requiring CPR include:

• 1910.146 Permit-required Confined Spaces
• 1910.266 Appendix B: Logging Operations – First Aid and CPR Training
• 1910.269 Electric Power Generation, Transmission, and Distribution
• 1910.410 Qualifications of Dive Team and
• 1926.950 Construction Subpart V, Power Transmission and Distribution

OSHA recommends basic adult CPR refresher training and retesting every year, and first aid training at least once every three years. CPR training include facilitated discussion along with ’hands-on’ skills training that uses mannequins and partner practice.

OSHA requirements regarding AEDs — you might need a prescription

Though OSHA recognizes AEDs as important lifesaving technology that plays a role in treating cardiac arrest, the agency doesn’t currently require their use in the workplace. Instead, OSHA wants employers to assess their own requirements for AEDs as part of their first aid response.

AEDs are considered Class III medical devices which means the Food and Drug Administration (FDA) has some oversight on their use. Almost all AEDs require the purchaser to obtain a prescription from a physician under FDA regulations. The prescription process is meant as a quality control mechanism to ensure AEDs are properly maintained, that all designated responders are properly trained, and assist employers with establishing an emergency response plan for their workplace AED program.

The AHA requires AED operators to also receive CPR training as an “integral part of providing lifesaving aid to people suffering sudden cardiac arrest.” Though easy to use, each AED is slightly different, so training helps users understand the unique traits and supplies for the individual units at their workplace. Additionally, AED users must be trained to understand the signs of a sudden cardiac arrest, when to activate the EMS system, and how to perform CPR.

AEDs are light, portable, easy to use, and inexpensive. They’re best placed near high-hazard areas such as confined spaces, near electrical energy, or in remote work areas. Response time to reach AEDs should be kept within 3–5-minutes.

Training requirements

Many states require or encourage CPR and AED training from nationally recognized organizations. Any AED training should include CPR training. OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as AHA, the American Red Cross, or National Safety Council is recommended.

Keys to Remember

While OSHA doesn’t currently require the use of AEDs in the workplace, they do expect employers to assess their own AED requirements as part of their first aid response. AED training is required by most states and should include CPR with a hands-on practical component.

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!

Drug testing scenarios

The following situations require the decision maker to:

• Evaluate the circumstances,
• Compare them against the regulations, and
• Then decide whether the event qualifies as refusal to test.

The DER makes the determination when:

• The driver fails to appear at the site or spends too much time getting there.
• The collector reports that the driver left before the testing process was complete.
• The collector reports that the driver left the collection site before providing a required specimen.
• The driver doesn’t permit an observed collection when ordered by the employer or allow a monitored or observed collection when instructed by the collector.
• The driver fails or declines to take an additional test when directed by the employer or collector (when required or permitted by the DOT).
• The driver fails to cooperate with any part of the collection process, including:
  • Refusing to empty pockets when directed;
  • Behaving in a confrontational manner that disrupts the collection process;
  • Refusing to remove hat, coat, gloves, or coveralls when directed; and
  • Failing to wash hands when directed.
• For an observed collection, the driver fails to follow the instructions to raise and lower clothing and turn around.
• The driver possesses or is wearing a device designed to carry clean urine or a urine substitute.
• During the collection process, the driver admits to the collector that they adulterated or substituted the specimen.

Examples when the MRO acts as the decision maker include:

The driver fails to provide sufficient specimen, and the MRO finds no medical explanation.

• The driver fails to undergo a medical examination or evaluation as directed by the MRO or employer.
• The lab reports an adulterated or substituted urine specimen, and the MRO finds no medical reason during the verification process with the driver.
• During a medical review, the driver admits to the MRO that they tampered with the specimen.

Alcohol testing situations

Alcohol tests don’t involve a specimen and laboratory result, so an MRO is not involved in the process.

All but one refusal-to-test scenario places the burden on the DER to make the decision. The DER must evaluate the circumstances when:

• The driver fails to appear for an alcohol test when directed to report.
• The testing personnel reports that the driver left the facility before:
  • The testing process was complete, or
  • Providing the required amount of saliva or breath.
• The driver fails to undergo a medical examination or evaluation as part of the insufficient breath procedures.
• The driver fails to sign the certification statement on Step 2 of the Alcohol Testing Form.
• The driver behaves in a confrontational manner that disrupts the alcohol testing process.

If the driver fails to provide a sufficient breath specimen (shy lung), an evaluating physician makes the final decision whether there was a medical reason for an insufficient amount of breath. If not, it’s a refusal.

Who reports what to the Clearinghouse?

Another role involving refusals to test is reporting the violation to the Clearinghouse.

In the case of drug testing:

• If the DER makes the determination, the carrier must report the refusal to the Clearinghouse within three business days.
• If the MRO makes the decision, they must report it to the Clearinghouse within two business days.

For alcohol testing, the motor carrier reports all refusals to test within three business days since there is no MRO involved. This includes the medical opinion when a shy lung episode has no medical explanation.

Key to remember: Several refusal-to-test situations require the DER to make a judgement call. The DER must know the criteria that qualifies each and report any instances to the Clearinghouse that they deem to be a violation.

1. Medical card expiration dates

On April 1, 2025, new versions of commercial driver medical cards and physical exam forms were posted by the Federal Motor Carrier Safety Administration (FMCSA) on its website.

The Medical Examination Report (MER) MCSA-5875, also called the "Long Form," and the Medical Examiner’s Certification (MCSA-5876), or the "Fed Med" card, were approved by the Office of Management and Budget on March 27, 2025. However, they were not available on the FMCSA website until April 1, 2025.

The changes include only the new expiration date of March 31, 2028, and a revision date of March 27, 2025. FMCSA expects medical examiners to start using the new forms as soon as possible, but they can still use their old forms with the 3/31/2025 expiration date until they run out.

• The catch is that states are encouraged by FMCSA, not required, to accept these cards dated 3/31/2025 from Commercial Driver's License (CDL) drivers but most do.

2. Over 15,000 driver exams falsified

The FMCSA voided over 15,000 unexpired Medical Examiner Certificates, issued by two certified medical examiners who are chiropractors in the Houston area, between March 2023 and March 2025. The 15,225 drivers impacted may still operate a commercial vehicle, but they must obtain a new certificate from a different medical examiner listed on the National Registry of Certified Medical Examiners (NRCME) by May 10, 2025.

Drivers who don’t obtain new certificates by May 10 will have their CDL downgraded, which means they won't be able to compliantly operate a commercial vehicle.

3. CDL driver medical certification integration

A third important update affects CDL drivers only. By June 23, 2025, all State Driver Licensing Agencies (SDLAs) must be connected to the NRCME. This system is where examiners enter medical certification information after each exam.

Each state will switch to the new process once their system can receive CDL driver medical certification information, which will appear on the motor vehicle record (MVR). A copy of a CDL driver’s MVR must still be in the driver’s qualification file after each exam.

What’s changing by June 23, 2025:

• CDL drivers won’t need to self-certify each medical card with the SDLA.
• CDL drivers are not required to be issued a medical card, so they must ask for one from the examiner to have proof of the new certification ( It takes 2-5 days to update the MVR).
• Carriers won’t need to note that the examiner was on the NRCME on the date of the exam, but should still get a CDL driver's medical card copy until the MVR is updated.

CDL drivers and carriers should check the SDLA websites for their transition dates and instructions on CDL driver medical certification. FMCSA's list of states that have transitioned are at the link below:

States that have transitioned

Keys to remember: Carriers and CDL drivers must understand how the medical certification changes will impact keeping medically qualified drivers on the road and to avoid unethical examiners.

‘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 10392.2violations 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.

What is a split specimen?

When a driver gives a urine sample for the purposes of DOT drug testing, the collector will split the specimen into two separate containers. The container labeled as the primary specimen will be tested by the lab; the container labeled as the secondary specimen is only tested if the driver requests that it be tested after the primary specimen is verified as positive, adulterated, or substituted.

How does a driver request that the split specimen be tested?

When the medical review officer (MRO) contacts the driver about a verified positive, adulterated, or substituted test, the MRO will inform the driver of the driver’s right to have the split specimen tested. The driver then has 72 hours from the time of notification to request via the MRO that the split specimen be tested.

What happens while the split specimen is being tested?

Because the driver’s primary specimen was verified positive, adulterated, or substituted, the motor carrier should have already pulled the driver from performing safety-sensitive functions. The driver cannot resume driving while the split specimen is being tested. Whether the driver is reassigned to a non-driving position or is suspended depends on the motor carrier’s drug and alcohol policy.

Who pays for the split specimen to be tested?

The regulations specify that the carrier cannot delay lab testing in order to collect payment from the driver. The secondary specimen should be submitted for testing as soon as the driver requests it, and motor carrier will be billed through the carrier’s lab account. In some cases, the motor carrier can seek reimbursement from the driver for full or partial costs of the split-specimen test.

Is the drug violation reported to the Drug and Alcohol Clearinghouse right away, or does the MRO wait for the results of the test on the secondary sample?

The MRO will report the positive, adulterated, or substituted drug test result to the Drug and Alcohol Clearinghouse within two business days of verifying the result for the primary specimen. Once the MRO receives the lab results for the secondary sample, one of three things happens:

1. The secondary test result reconfirms the primary test result. The violation stands and remains in the Clearinghouse.
2. The test of the secondary sample fails to reconfirm any of the original findings. The test will be canceled, and the MRO will change the result in the Clearinghouse within one business day of receiving the secondary test results.
3. The test of the split specimen does not reconfirm the original result but identifies something suspicious in the secondary sample. The regulations in 40.187 spell out a variety of situations that require the driver to be tested again, such as if the secondary sample is invalid or if part of the original result is reconfirmed but the sample also tests as substituted or adulterated. If any of these complex scenarios applies, the MRO will direct the carrier’s designated employer representative (DER) to immediately send the driver for another collection under direct observation. If that test result is negative and is not adulterated or substituted, the MRO will change the result in the Clearinghouse within one business day of receiving the secondary test results. Otherwise, the violation will stand and remain in the Clearinghouse.

Key to remember: Dividing a urine specimen into two samples allows for a driver to request that the secondary sample be tested if the first specimen indicates drug use. This is an important part of the driver’s right to due process.

To illustrate

Here are examples to show how this works:

1. An employee with multiple sclerosis (MS) was eligible and took intermittent FMLA leave in April and May but needed leave again when the episodes of incapacity recurred in July and again in October. She would be entitled to FMLA leave without having to re-qualify under the 1,250-hour eligibility test so long as the absences occurred within the same 12-month period, and she still had FMLA leave available.
   
   If the employee needed leave for MS again in a new 12-month period, the employee would have to re-qualify under the 1,250-hour eligibility test to be entitled to take FMLA leave for the same condition in the new 12-month period.
2. Assume the same facts as in the first example and, in addition, assume that she has a car accident and needs six weeks of FMLA leave to recover.
   
   If, at the time of this second and different FMLA-qualifying reason, the employee met the 1,250-hour eligibility test, she would be entitled to FMLA leave for that second reason.
   
   The employee would also continue to be eligible for intermittent FMLA leave for MS for the rest of the current 12-month period or until she ran out of the 12 weeks of leave.
3. Assume the same facts as in the second example, except at the time of the car accident, the employee does not meet the 1,250-hour eligibility test. In this situation, the employee would not be entitled to FMLA leave for the car accident. She might take time off as an accommodation or some other kind of leave, but it wouldn’t be FMLA leave.

Thus, it’s possible that an employee could remain eligible for leave for one FMLA-qualifying reason for which the employee met the 1,250-hour test (i.e., MS), but not be eligible for FMLA leave for a different FMLA-qualifying reason (i.e., car accident), due to the 1,250- hour test being re-calculated at the beginning of the second and separate reason for leave.

Key to remember: Employers may not recalculate employee eligibility to take FMLA leave during the 12-month leave year when leave is taken for a particular qualifying reason.

WPV rule has been long on the radar

Meanwhile, OSHA’s own WVP rulemaking effort has been in the works for almost a decade (since April 2016). It too is intended to cover HCSA work settings. Things heated up in 2023. That’s when the agency issued a draft outline of the regulatory text and completed a small business panel report.

At that point, the agency was free to issue a proposed rule. The Fall 2024 agenda indicates that the last administration hoped to issue the proposal in June 2025. The upcoming Spring 2025 agenda may reveal the agency’s new priorities.

Bills’ sponsors leading the charge

Representative Joe Courtney (D-CT) commented, “Our legislation would put proven tactics into practice in hospitals and healthcare settings across the country to prevent violence before it happens. I’m grateful for the bipartisan coalition — backed by the support of the workers directly affected by this violence — who has worked tirelessly to move this legislation forward year after year.”

“We rely on our healthcare workers every day to protect our communities, and in turn, we need to protect them from senseless acts of violence,” argues Senator Tammy Baldwin (D-WI), “That’s why I am introducing legislation to give our healthcare professionals long-overdue basic protections, helping address our healthcare workforce shortage and keeping our frontline heroes safe.”

OSHA to take stab at interim final rule first

If either bill becomes law, it will direct OSHA to issue an interim final rule (not just a proposed rule) within one year. Prior to issuing the interim final rule, the agency would publish a notice with a 30-day comment period.

The interim rule must be based on “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,” a booklet published by OSHA in 2015. In addition, the rule would call for employers with certain HCSA settings to develop and implement a comprehensive workplace violence prevention plan (WVPP) within six months. While the rule would need to take effect no later than 30 days after issuance, delayed compliance dates are allowed to phase in engineering controls.

If OSHA fails to issue the interim rule on time, the provisions in the bill would take effect one year after enactment. OSHA would also be required to enforce those provisions. They would remain in place until the agency issues an interim final rule.

Proposed rule then final rule to hit later

Within two years after the Act’s enactment, OSHA would also be obligated to publish a proposed WPV for HCSA rule. A permanent final rule would follow no later than 42 months after enactment of the Act. The permanent rule can be no less protective than any workplace violence standard adopted in California, Washington state, or any other state-plan state.

The two bills list covered facilities and exclusions. Mandated regulatory provisions of a permanent rule would include:

• Written WVPP,
• Violent incident investigation,
• Training and education,
• Recordkeeping and records access,
• Annual reporting to OSHA,
• Annual WVPP evaluation,
• WVPP updates, and
• Anti-retaliation.

OSHA can target work violence violations without a rule

Right now, there’s no federal OSHA standard on workplace violence. Yet, OSHA can cite and has cited section 5(a)(1), the General Duty Clause, of the Occupational Safety and Health Act when the agency finds employers that expose workers to this recognized hazard. While the two bills and even the upcoming OSHA rulemaking focus on just HCSA settings, General Duty Clause citations can be used in ANY industry with work violence hazards.

Key to remember

Lawmakers re-introduced companion bills (H.R. 2531 and S. 1232) to require OSHA to issue an interim WPV final rule within one year. Just one of the bills must pass both the House and Senate before it can be signed into law. Meanwhile, all eyes will be on OSHA's upcoming Spring Agenda to see if the existing WPV rulemaking will be a priority during this administration.

FMLA certification basics

Employers aren’t required to use certifications, but if they do, the U.S. Department of Labor (DOL) has five different certification forms to use for various FMLA leave situations.

The forms are as follows:

1. Certification of Health Care Provider for Employee's Serious Health Condition,
2. Certification of Health Care Provider for Family Member's Serious Health Condition,
3. Certification of Qualifying Exigency for Military Family Leave,
4. Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave, and
5. Certification for Serious Injury or Illness of a Veteran for Military Family Leave.

Let’s focus on the first two, as these are the most common ones HR administrators use.

Who can fill out an FMLA certification?

The FMLA regulations describe the person who has the authority to fill out a certification as a “health care provider.” The good news is, the regulations include a lengthy list of medical professionals who fit this role.

Under the FMLA, a health care provider includes:

• A doctor of medicine or osteopathy,
• A podiatrist,
• A dentist,
• A clinical psychologist,
• An optometrist,
• A chiropractor (limited to manual manipulation of the spine as demonstrated by X-ray),
• A nurse practitioner,
• A nurse midwife,
• A clinical social worker,
• A physician assistant,
• A Christian Science practitioner, and
• Any health care provider from whom the employer or the employer's group health plan's benefits manager will accept a medical certification to substantiate a claim for benefits.

To be qualified to fill out FMLA forms, medical professionals must be authorized to practice in the state and perform within the scope of their practice. This means that the provider must be authorized to diagnose and treat physical or mental health conditions.

What about doctors in a foreign country?

If an employee or an employee's family member is visiting another country, or a family member resides in another country, and a serious health condition develops, the employer must accept a medical certification from a health care provider who practices in that country. This includes second and third opinions.

If a medical certification from a foreign health care provider is not in English, the employee may be required to provide a written translation of the certification.

Key to remember: The FMLA regulations spell out which medical professionals can fill out certification forms.

What do federal contractors do now?

Although some previous executive orders have been revoked, their underlying regulations are still in place. It is likely that they will no longer be enforced, however. While waiting for further guidance and final regulatory action, federal contractors can:

• Continue to display the Executive Order 14026 minimum wage and Pay Transparency postings until their contracts are revised or the Department of Labor removes the underlying regulations;
• Prepare to display the revised Know Your Rights posting;
• Continue to display the Executive Order 13658 minimum wage posting, when required;
• Continue to display other postings required under their contract, as well as federal, state, and local laws; and
• Stay alert for more updates.

If federal contractors are unsure of what needs to be posted, their contract likely holds the answer. Federal contractors need to comply with contract requirements, and that includes posting obligations.

Key to remember: Federal contractors need to display postings required under their contract. Executive orders are likely to bring revisions to these requirements.

Improving workplace safety: practical steps

In 2023, there were 5,283 fatal injuries in US workplaces. It is important for employers to ensure the safety of their workers and for workers to take responsibility for their own safety and that of their coworkers. Here are some practical steps to enhance workplace safety:

1. Conduct regular safety training

One of the most effective ways to improve workplace safety is through regular safety training. Educating employees about workplace hazards, proper procedures, and emergency actions is crucial. Ensure training sessions are engaging and interactive, allowing workers to ask questions and participate in discussions. Consider incorporating real-life scenarios, hands-on practice, emergency drills, and the use of props to make the training more impactful.

2. Encourage reporting of hazard and incidents

Create an open environment where workers feel comfortable reporting safety concerns. Encourage employees to speak up about potential hazards, incidents, or even near misses, without fear of retaliation. Implement anonymous reporting systems to support this. Be sure to consistently and regularly review and address reported hazards to demonstrate that safety concerns are taken seriously and acted upon promptly.

3. Effectively control hazards

Before resorting to personal protective equipment (PPE), it's crucial to control hazards using the hierarchy of controls. This systematic approach prioritizes hazard control methods based on their effectiveness:

• Elimination: Remove the hazard entirely from the workplace. This is the most effective control measure.
• Substitution: Replace the hazard with a less dangerous alternative. For instance, choose a less hazardous chemical or replace ceiling tiles with noise-reducing ones in loud work areas.
• Engineering controls: Design or modify equipment to reduce exposure to hazards. This can include ventilation systems or machine guards.
• Administrative controls: Implement policies and procedures to minimize risk. For example, rotate job assignments to reduce exposure time or offer task-specific training on safe work practices.
• PPE: Use protective gear as a last resort when other controls are not feasible or fully effective. PPE should complement other safety measures to ensure thorough protection.

4. Use PPE correctly

Make sure PPE is readily available, well-maintained, and suited to the specific risks of the job. It should fit workers properly to avoid entanglement in equipment or machinery and encourage its use. Regular inspections and training on the correct use of PPE can prevent many injuries. It's also important to foster a culture where wearing PPE is seen as standard practice rather than an inconvenience.

5. Build a Strong Safety Culture

A strong safety culture is the backbone of effective workplace safety. It involves the collective commitment of both employees and management to prioritize safety in every aspect of operations.

• Engage employees. When workers are actively involved in safety programs, they are more likely to adhere to safety protocols and contribute valuable insights. Encourage participation in safety committees, conduct regular safety meetings, and solicit feedback on safety practices. Recognize and reward employees who demonstrate a commitment to safety, fostering a sense of ownership and accountability.
• Strengthen management support. Leaders should visibly endorse and participate in safety initiatives. Allocate resources for safety training, equipment, and improvements. Establish clear safety policies and consistently enforce them. When management prioritizes safety, it sets a powerful example for the entire organization.

Key to remember: Workers’ Memorial Day is a solemn reminder of the importance of workplace safety. By conducting regular safety training, encouraging hazard reporting, controlling hazards and building a strong safety culture, organizations can work towards a safer future.

Interpreting the OSHA standard

Workers who are exposed to noise at or above determined limits are at risk of developing significant and permanent hearing loss over their work life if they are not adequately protected. OSHA’s occupational noise standard, 1910.95, has established two levels of exposure, averaged over an 8-hour time period, at which employers must take steps to protect workers.

• Action level (AL) – at or above 85 dB or an equivalent of 50% dose, employers must:
  • Implement a hearing conservation program that includes noise monitoring;
  • Provide annual audiograms and appropriate follow-ups for exposed workers;
  • Enforce use of hearing protective devices (HPDs) when engineering or administrative controls are not sufficient to reduce exposure to acceptable limits; and
  • Deliver effective annual employee training.
• Permissible exposure level (PEL) – at or above 90 dB or an equivalent 100% dose, employers must:
  • Implement engineering or administrative controls to reduce noise exposure;
  • Enforce the use of HPDs when engineering or administrative controls are not sufficient to reduce exposure to acceptable limits; and
  • Evaluate noise regularly to determine when ALs may require further action.

Here is a quick tip! If you need to raise your voice to speak to someone only 3 feet away, it’s likely the noise level is over OSHA’s action level of 85 decibels.

Understanding the parameters of sound

Noise is considered hazardous based on how loud the sound is, how long it lasts, and how often the exposure is. For hearing conservation, noise monitoring factors in these measurements:

• Frequency – the “pitch” of sound, measured in Hertz (Hz) and representing the number of sound waves passing a particular point per second. The higher the frequency, the higher the pitch as with a high-pitched whistle.
• Amplitude – the loudness or intensity of sounds, measured in decibels (dB). The larger the amplitude, the louder the sound as with speakers at a concert.
• Time – the duration of sound, or how long it lasts. Keep in mind that at both long-lasting and short duration, high amplitude sounds can be damaging to your hearing.

Identifying types of sound

For proper hearing protection, employers must account for several different noise types including:

• Continuous – noise that lasts for more than one second and is stable over time. The hum of an air conditioner or fan is an example of continuous noise.
• Intermittent – noise that cycles on and off with quiet periods in between. Intermittent noise may include a pump or generator kicking on or off as needed, an airplane flying overhead, and many manufacturing noises.
• Impulse – noise created by the collision of two masses with a duration of less than one second. Common examples of impulse noise include alarm systems, jackhammers, or punch presses.
• Impact – noise with an amplitude over 130 dB that has a sharp rise and rapid decline. Gunshots, explosions, and popping balloons are examples of impact noise.

By understanding the parameters of sound, including its intensity, frequency, and the three types - intermittent, continuous, and impulse - we can better manage noise exposure and protect our hearing.

Keys to remember: Sound is what we hear; noise is harmful or unpleasant sounds. Understanding sound types, intensities, and frequencies helps protect and preserve hearing now and into the future.

What prompted the concern?

To determine if someone could safely work alone in a specific situation, the first step is to evaluate why that concern arose. Questions to consider might include:

• What hazards will the employee face, and what is the likelihood the employee will need help in an emergency? Consider both the probability of an incident as well as the severity.
• Did the concern arise because of external threats, such as a security guard who could face a violent situation? Or did the concern arise because of job hazards, such as working with dangerous equipment? How can those hazards be reduced or eliminated?
• Will the employee have a cell phone and designated contact? Will another employee or manager be on call? How long would someone else take to respond?

Keep in mind that unless security cameras are continually monitored, they do not provide any protection for lone workers. If an incident occurs, video recordings might help determine what happened, but cameras cannot prevent an incident from occurring.

For related information, see our article One is the loneliest number: Five steps to lone worker safety.

Trusting the worker

When a job requires working alone, the employer will presumably select a responsible and trustworthy employee. The employer should train that person to recognize hazards, use caution, and avoid any tasks that create an unacceptable level of risk. Lone workers must understand that they are responsible for their own safety and should carefully consider the potential consequences of any actions. If they have to stop and think about whether they can perform a specific task safely, then skipping that task may be best.

Supervisors should be wary of reprimanding lone workers for “not doing the job.” If tasks were not completed because lone workers felt uncomfortable, they should be praised for prioritizing their safety and refusing to put themselves at risk. Supervisors should not inadvertently encourage them to take risks. Instead, ask the employee to explain why they could not complete the task and try to think of alternative procedures that might get the job done with lower risk.

Establishing a check-in procedure could also be an option. Determine how the worker should check in, with whom, and how frequently. That could mean calling a manager before starting a particular task and again upon completion. In addition, decide on a response if the employee misses a call. Will the manager visit the site to check on the worker? For related information, see our article Lone Workers: A recommended policy.

Employers must balance the potential risks to someone working alone against the costs of scheduling a second worker. Options may range from having someone on call to simply delaying specific projects until additional workers are on duty.

Key to remember: OSHA does not prohibit employees from working alone, but employers should carefully evaluate the hazards and ensure that lone workers do not take unnecessary risks.

Takeaways for employers about child labor

Employers often believe that OSHA regulations cover worker age limits, but that’s not the case. Companies employing minors should be aware that the federal FLSA and state child labor laws limit the types of work that can be performed by individuals under 18 years of age. When state child labor laws differ from the federal provisions, an employer must comply with the higher standard.

Key to remember: As roofing season kicks in, employers should be aware of child labor laws that prohibit youths from working on or about roofs.

Why pre-job planning matters

Falls happen quickly and without warning, especially in the fast-paced and often unpredictable environment of a construction site. Pre-job planning creates the framework for identifying potential hazards and implementing strategies to eliminate or control them before work begins.

It also ensures that everyone — from seasoned crew members to new hires — understands how to protect themselves and their coworkers.

OSHA training requirements

The Occupational Safety and Health Administration (OSHA) mandates that all workers exposed to fall hazards receive training. This training must be conducted before any exposure and must be led by a competent person — someone capable of identifying hazards and authorized to take corrective action.

The training must cover:

• How to recognize fall hazards,
• How to minimize exposure to those hazards, and
• How to use fall protection systems correctly.

Additionally, employers are required to maintain a written certification record that includes:

• The employee’s name or identifier,
• The date(s) of the training, and
• The trainer’s or employer’s signature.

Retraining is necessary whenever there’s reason to believe a worker lacks the required knowledge or skills. Annual refresher training is encouraged as a best practice.

Preventing falls with pre-job planning

Before you and your workers ever step foot on a construction jobsite, you need to think strategically about the work environment and how you’re going to keep your employees safe.

Once you have determined that your workers will likely be exposed to fall hazards on your next jobsite, you need to develop your plans for fall prevention.

OSHA allows employers to choose from a variety of fall protection systems, including:

• Guardrails,
• Safety nets,
• Personal fall arrest systems,
• Positioning devices,
• Warning lines,
• Controlled access zones,
• Safety monitoring systems,
• Floor hole covers, and
• Fall protection plans.

If workers are responsible for installing or maintaining any of these systems, they must be trained in the correct procedures, including:

• Inspecting all equipment for wear or damage,
• Following manufacturer instructions when setting up or breaking down systems, and
• Performing regular checks during use to maintain safety standards.

You should also try to think outside the box and determine if there are other safety alternatives that would better protect workers from fall hazards.

For example, get in the habit of asking yourself: “Which would be the safest way for my workers to reach/access/work from this area?”

Perhaps it means using a ladder. Or an aerial lift. Or a scissor lift. Or maybe it involves installing a temporary guardrail on the roof, walkway, or work platform.

Preventing falls with regular toolbox talks

To effectively reduce the risk of falls, your pre-job safety meetings and ongoing training sessions remind workers how to identify fall hazards. Every jobsite is different, and hazards can change daily. Workers must be trained to spot common fall risks, such as:

• Unprotected edges,
• Floor holes or openings,
• Unstable surfaces, and
• Work performed from heights (e.g., ladders, scaffolds, aerial lifts, and roofs).

Remind workers to:

• Inspect their work areas before starting the job,
• Report unsafe conditions like missing guardrails or slippery surfaces, and
• Stay aware of environmental factors (rain, ice, wind) that can increase fall risks.

Construction environments are dynamic. Encourage workers to perform ongoing hazard assessments as conditions evolve.

Building a culture of fall prevention

Preventing falls isn’t just about checking boxes for compliance. It’s about creating a culture where safety is ingrained in every task, every day. By taking fall protection seriously during pre-job planning, employers show their commitment to protecting workers’ lives.

From mandatory training to consistent equipment checks, every precaution counts. With proactive planning and education, construction teams can work confidently at heights, knowing they’ve done everything possible to stay safe.

Key to remember: With thoughtful pre-job planning, comprehensive training, and a commitment to safety, we can reduce fall injuries and fatalities on construction sites.