Avoid the ‘tell’ with random testing

Pesticide registration tracking app

On April 18, EPA made enhancements to its MyPest app, which sources say was initially launched in mid-January. EPA is proud to say that MyPest already boasts over 1,200 registrants. The new app allows registrants of pesticide products to:

• Monitor the status of their registration submissions in real-time,
• Drill down to a detailed view of each application, and
• Communicate directly with EPA staff about registration packages in review.

Updates to MyPest include an enhanced dashboard page. The page offers information about the registrant’s cases and products. More updates are planned later this year.

Policy changes impacting two forms

On April 4, EPA announced in the Federal Register the issuance of Pesticide Registration (PR) Notice 2025-1. The notice itself is dated effective March 27, 2025. Its subject line reads, “Revised Procedures for Citing Data to Support Pesticide Registrations (EPA Forms No. 8570-34 and 8570-35).”

The latest PR notice supersedes PR Notice 98-5, dated June 12, 1998. While the revisions were proposed last June, the agency only finalized them now. According to PR Notice 2025-1:

• EPA Form 8570-34 — This is the Certification with Respect to Citation of Data. Pesticide registrants use this form to indicate how they will meet their data submission/citation obligations under the law. When a registrant refers to another company’s data, the registrant must certify that:
  • It offered compensation to the original data submitter, or
  • It has the original data submitter’s permission to cite the data.
• EPA Form 8570-35 — This is the Data Matrix. Pesticide registrants use this form to indicate to whom they made offers of compensation.

The two forms — EPA Forms 8570-34 and 8570-35 — have not been modified. Only policies regarding the submission of the two forms have changed. The agency:

• Eliminated the instruction to use “paper” submissions;
• Says registrants should complete and submit the two forms electronically through the Pesticide Submission Portal;
• Eliminated the instruction that registrants submit two versions of the Data Matrix, i.e., the ‘‘Internal Agency Use Copy’’ and the ‘‘Public File Copy’’; and
• Requires that registrants submit a single Data Matrix without redactions.

EPA contends that none of the information on Form 8570-35 is confidential. Put another way, none of the information on the Data Matrix is protected from public release. Therefore, the agency claims there is no reason to submit two versions of the form.

According to EPA, entities potentially affected by the policy changes include, but are not limited to:

• Crop production,
• Animal production,
• Food manufacturing, and
• Pesticide manufacturing.

Efficiencies and transparencies gained

Using electronic reporting for EPA Forms 8570-34 and 8570-35 brings efficient data transmittal, argues EPA. A bonus is that electronic reporting will also reduce errors. That’s because of automated validation tools in the portal. Submitters should experience lower costs and faster review and transmission of data, the agency adds.

In 2024, EPA received a total of 3,309 Data Matrices. Moving from two versions to just one for the Data Matrix form should save registrants and EPA time. Specifically, completing, submitting, and processing the Data Matrix should be quicker. EPA will also experience time savings when providing the public access to the information. Extra steps under the Freedom of Information Act would not be needed.

The MyPest app update is a step forward in efficiency and transparency, concludes EPA. The app enhancements are part of the agency’s overall move toward digital and streamlined processes. EPA projects that the app will improve the timeliness of pesticide registration decisions.

Key to remember

Recent actions streamline the pesticide registration process and make it more transparent. These actions relate to the MyPest app and EPA Forms 8570-34 and 8570-35.

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. How do I test the equipment?

UST owners and operators may conduct release detection equipment testing according to:

• The manufacturer’s instructions,
• Industry codes and standards, or
• The implementing agency’s requirements.

Manufacturer’s instructions

Each piece of release detection equipment should have an associated manual or guide for owners to reference. The manual or guide will explain how to test the equipment.

Tip: Most equipment manufacturers provide online versions of their product manuals and guides, which you can likely find on the manufacturer’s website. If you can’t find guidance, contact the manufacturer directly.

Industry codes and standards

EPA’s regulations stipulate that UST owners and operators who follow industry codes and standards must choose ones developed by a nationally recognized association (like ASTM International or the Petroleum Equipment Institute (PEI)) or an independent testing laboratory.

For instance, the agency states at 280.40(a)(3) that UST owners and operators may use PEI/RP1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities, to comply.

Implementing agency requirements

EPA’s rules for testing release detection equipment serve as the minimum standards. Most state regulatory agencies implement UST programs and may impose stricter or additional requirements. Plus, local regulations may apply.

Check state and local rules to ensure your UST complies with the right requirements.

2. What do I test?

At a minimum, UST owners and operators must test the following factors that apply to their release detection systems.

• Automatic tank gauges and other controllers: Test the alarms and battery backups. Verify the system’s configuration.
• Probes and sensors: Test alarm functionality and communication with the controller. Inspect the probes and sensors for residual buildup. Ensure that the floats move freely, the cables have no kinks or breaks, and the shaft isn’t damaged.
• Automatic line leak detectors: Simulate a leak to determine whether the detector meets the operation requirements of 280.44(a).
• Vacuum pumps and pressure gauges: Confirm correct communication with the sensors and controller.
• Handheld electronic groundwater and vapor sampling equipment: Ensure the monitoring equipment operates properly.

3. What records do I have to keep?

The regulation at 280.45(b)(1) mandates that UST owners and operators keep records of the annual release detection equipment testing results for at least three years.

For each annual testing record, list:

• Each device tested,
• If the devices operated according to 280.40(a)(3) or had issues that needed attention, and
• Any corrective actions applied.

Why is release detection equipment testing so important?

Petroleum and other hazardous substances that leak from USTs can endanger human and environmental health. A leaking UST’s primary threat is groundwater contamination. Groundwater supplies drinking water for almost half of Americans.

A release detection system enables a facility to respond sooner to accidental releases and, therefore, limit potential harmful impacts — only if the equipment used for the system operates properly.

Testing your UST’s release detection equipment is vital because it allows you to identify which components function accurately and which parts have problems that need correction. A well-functioning release detection system can help your facility:

• Maintain regulatory compliance (and avoid enforcement actions like penalties for noncompliance),
• Identify opportunities to upgrade existing equipment to improve operational efficiency, and
• Protect your employees and the community in which your facility operates.

Key to remember: EPA requires facilities to test the release detection equipment used on underground storage tanks each year to make sure it operates properly.

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.

Nowhere to go

The truck driver said he tried to move away but had nowhere to go since his truck was surrounded by other vehicles. (And believe me, as someone who regularly drives around Chicago, trucks are given very little room to maneuver on I-294!)

During a later FMCSA audit, however, the investigator refused to treat the crash as non-preventable, labeling it as “undetermined” instead. Unfortunately, that (along with other crashes) made the company’s overall accident rating “unsatisfactory,” which lowered their overall safety rating to “conditional.”

Wrong video

The company fought the downgrade of its safety rating, submitting a police report showing that the car driver was cited for the traffic violation and was clearly at fault. The motor carrier also submitted video evidence from its dash-cam system, but unfortunately, the video was from a different incident. The company was made aware of the mistake but was unable to produce the correct video.

Without video evidence, the FMCSA ruled that the auditor’s initial assessment had to stand, and the company’s safety rating remained “conditional.”

Two separate issues

If you’re familiar with the FMCSA’s crash policies, you know that the cause of a crash and whether it could have been avoided are separate issues. Here, the car driver caused the crash but could the truck driver have done anything to avoid it?

Without video, the auditor explained that he had no way of knowing basic facts, such as traffic conditions and the location of other vehicles. In this case, the truck had cameras but either they were turned off or the videos were lost.

The lesson here is clear: video cameras can provide useful evidence that could save your safety rating, but you need to make sure they’re recording at the right time and that those recordings are available should you get audited.

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!

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.

What information will a CMV driver need to share during a roadside inspection?

A driver needs to respond in English about items, such as:

• The origin and destination of the trip as well as the products they are hauling;
• The amount of time spent on duty, including driving time, and the transfer of electronic logging device (ELD) records;
• Their driver’s license and medical certification; and
• The vehicle component and systems.

When can an officer cite a driver for not understanding English?

If the driver cannot respond in English to officer inquiries and follow instructions, the guidance is to cite the driver for violating 49 CFR 391.11(b)(2) or 395.24(d) if they cannot transfer ELD records.

Drivers must also understand highway traffic signs and signals or risk a citation under 391.11(b)(2)(S) and serious safety issues, such as:

Suppose a driver loses their brakes descending a steep grade; they must be able to read signs for and use an upcoming runaway truck ramp.

Potential driver hires must be able to follow traffic signs and signals during the road test per Section 391.31 of the FMCSRs. Conduct training as needed to ensure each driver understands road signs and signals.

Does a driver need to be fluent in English to pass a DOT physical?

The guidance on the Medical Examination Report or “long form” states:

“When determining a driver’s physical qualification, please note that the English language proficiency (49 CFR part 391.11: General qualifications of drivers) is not factored into that determination.”

To medically certify a driver, a certified medical examiner (CME) must receive an accurate Driver Health History as required on page two of the “long form.” The driver should be able to read and complete the health history questions during the DOT exam.

Caution: An employer cannot ask the driver about their health history or obtain the “long form” without written consent from the driver.

Key to remember: Meeting the English language requirements while drivers are on the road and during a medical examination is essential to safety.

Registration dates

The early registration period for the 2025-2026 registration year begins on May 1, 2025. Registrations submitted before this date will not be processed, potentially causing delays and errors. The official registration year runs from July 1, 2025, to June 30, 2026. Ensure your registration statement and payment are submitted before July 1, 2025, or before engaging in any activities requiring registration.

Need additional information on PHMSA registration? Check out this FAQ.

New login requirements

PHMSA has implemented multi-factor authentication (MFA) for added security. All external users must register with Login.gov before accessing the PHMSA Portal. Here are the steps for new users:

1. Click "Sign in with Login.gov" on the PHMSA Portal.
2. Create an account by submitting your email address.
3. Confirm your email address via the link sent to you.
4. Create a strong password (12 characters or more).
5. Select "Text or voice message" for authentication and enter the code received.

Existing users must also use Login.gov to sign in and authenticate their accounts.

Fee changes

In the future, PHMSA will be adjusting its registration and fee assessment program. However, there will be NO changes implemented for the 2025-2026 registration year. The fees will remain as follows:

Small businesses and non-profits: $275 for one year, $525 for two years, $775 for three years.

Other businesses: $2,600 for one year, $5,175 for two years, $7,750 for three years.

Elimination of paper checks

The U.S. Department of the Treasury is phasing out paper checks in favor of electronic payments due to rising costs. While paper checks will still be accepted for the 2025-2026 registration year, PHMSA encourages registrants to transition to electronic submissions to minimize delays and errors.

Contact information

If you need assistance with registering or have questions about the registration process or procedures, PHMSA encourages you to contact the registration help desk at:

• (202) 934-1630 for businesses beginning with A-M
• (202) 934-1631 for businesses beginning with N-Z

Alternatively, you can email register@dot.gov for support.

Key to remember: Changes for this year include new login requirements through Login.gov and eliminating paper checks. PHMSA is also looking at changing the registration and fee structure in the future, so keep an eye out for any updates.

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.

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.

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.

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.

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.

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.

Check the standard

Congress passed the OSH Act of 1970, from which OSHA derives its authority. The regulation at 29 CFR 1975.2, Basis of authority, cites a number of Supreme Court cases. That standard notes that the Commerce Clause of the Constitution grants Congress the power “to regulate Commerce with foreign Nations, and among the several States.” This is commonly known as the interstate commerce clause.

Citing various Supreme Court cases, that section says that Congress may “regulate conditions or activities which affect commerce even though the activity or condition may itself not be commerce and may be purely intrastate in character” (emphasis added). To me, it seems odd that the power to regulate “interstate commerce” includes the power to regulate activities that are neither commerce nor interstate. The cases cited, however, adopted the “affects commerce” interpretation to expand the reach of federal authority.

One such case is Wickard v. Filburn (1942) in which the Supreme Court held that a farmer who grew wheat to feed his own livestock was engaged in activity that affected interstate commerce. Therefore, that activity could be subject to federal regulation, and the farmer had to pay a penalty for growing too much wheat. The reasoning was that, if he had not grown the extra wheat, he’d have to buy wheat on the market. His action therefore “affected” commerce.

What can Congress regulate?

Finally, the above regulation says, “it is not necessary to prove that any particular intrastate activity affects commerce, if the activity is included in a class of activities which Congress intended to regulate because the class affects commerce.” Further, “the class of activities which Congress may regulate under the commerce power may be as broad and as inclusive as Congress intends.”

That implies Congress need not prove whether an activity even affects commerce. As long as Congress intends to regulate something, it can do so.

All of this becomes relevant when evaluating any legal challenges to OSHA’s authority (or to other federal agencies, for that matter). It seems to me that the Supreme Court would need to overturn or significantly narrow decisions like Wickard in order to uphold any such challenges. I’m not speculating on whether that would happen, or if the matter would even come before the Supreme Court. But if the high court overturned those decisions, the implications would be enormous for all federal agencies.

Letters of Interpretation

As clarified in an OSHA Letter of Interpretation (LOI) dated October 18, 1995, “When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred and a permit is required, regardless of whether there is an intent to fully enter the space.”

This definition of “entry” might seem to be too strict. Still, OSHA’s letter clarifies that there are situations where a partial entry would be hazardous: “Examples of situations where entry by only part of the body into a PRCS can expose an entrant to the possibility of injury or illness are as follows:

1. An entrant can possibly suffer a burn while reaching into a PRCS, which is so classified because it contains a thermal hazard.
2. An entrant can possibly fall into a below-grade PRCS while standing on a vertical ladder in the opening of the space, which is so classified because it contains an oxygen-deficient atmosphere.
3. An entrant can possibly become unconscious as result of his head accidentally entering a PRCS while they are reaching into a PRCS, which is so classified because it contains an oxygen deficient atmosphere.”

As another example, if the space contains a flammable or oxygen-enriched atmosphere, and if the activities during a partial entry could produce a spark or other ignition source, then a fire in the space could flash out of the opening and cause serious injuries to the employee.

OSHA’s guidance continues

This doesn’t necessarily mean you’d be fined if a permit wasn’t followed when someone reached a tank. OSHA’s guidance continues: “However, if entry by only part of the body does not expose the entrant to the possibility of injury or illness, then the violation may be considered a ‘de minimis’ violation.”

A de minimis violation is one in which a standard is violated, but the violation has no direct or immediate relationship to employee safety or health. These violations are documented but no citations are issued.

OSHA says examples of situations where entry by only part of the body into a PRCS would not expose an entrant to the possibility of injury or illness are as follows:

1. An entrant reaches through the opening of a horizontal PRCS, which is so classified only because it contains exposed live electrical parts ten feet from the opening.
2. An entrant puts his head through the opening of an overhead PRCS, which is so classified only because it contains unguarded rotating parts ten feet from the opening.

Also, consider a situation such as a worker reaching through a small grate to take a sample from a permitted space. The LOI further states, “If a part of the body were placed in an opening through which the worker could not pass into the permit-required confined space, no PRCS entry will have occurred.”

Keep in mind, however, that the employee would still need protection from any hazards involved in the task, but a permit would not be needed.

Key to remember

When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred, and a permit is required.