Continuous, intermittent, and back again - Managing ever-changing FMLA leaves

Federal Motor Carrier Safety Administration (FMCSA)

It’s generally business as usual for the FMCSA. Roadside inspections are considered an essential safety function. Both federal and state enforcement partners perform these inspections, and most weigh stations are run by state Department of Transportation (DOT) agencies, which aren’t directly affected by a federal shutdown.

Drivers should assume inspections will continue as normal. Violations will still result in citations, out-of-service orders, and compliance reviews.

While the day-to-day enforcement likely won’t change, some aspects of the FMCSA and DOT operations may slow down, such as:

• Rulemaking and new initiatives: Any changes to federal regulations will pause.
• Audits and investigations: Compliance reviews and safety audits may take longer, although the enforcement of violations will continue.
• Administrative support: Processing non-urgent matters, permits, or correspondence may be slower.

New registrations and filings, such as new USDOT numbers, new authority, and Unified Carrier Registration filings, will likely experience delays until the shutdown is resolved.

Pipeline and Hazardous Materials Safety Administration (PHMSA)

The picture is more complex at PHMSA. The DOT plan says about one-third of the agency's 580 employees are expected to be furloughed. Inspections of hazardous materials shippers, carriers, and other entities will continue, as will enforcement of the hazardous materials safety regulations. However, a variety of administrative functions are expected to be impacted, including non-emergency approvals and permits, rulemaking activities, research, grants, outreach, and the hazmat registration and fee-collection program.

Occupational Safety and Health Administration (OSHA)

OSHA will continue only its essential functions, including:

• Inspections for imminent danger situations, workplace fatalities, and catastrophes;
• Review and referral of whistleblower complaints tied to imminent threats;
• Follow-up inspections of serious violations without abatement; and
• Enforcement actions needed to meet statutory deadlines on high-risk cases.

All other agency activities such as rulemaking, programmed inspections, compliance assistance, website updates, and outreach programs are suspended. Only employees designated as essential may continue working, and the Occupational Safety and Health Review Commission halts all operations for the duration of the shutdown.

Environmental Protection Agency (EPA)

EPA has implemented its contingency plan, resulting in a significant reduction in operations. Approximately 90 percent of EPA staff have been furloughed, leaving around 1,700 personnel to continue essential functions, including emergency response operations, law enforcement, criminal investigations, maintenance of critical laboratory assets, and Superfund site work only if halting it poses an imminent threat to human life.

Most routine EPA functions have been suspended (like issuing permits and regulations). The agency has also paused work on climate-related regulations and restructuring efforts unless deemed essential or funded through exempted sources (e.g., Infrastructure Investment and Jobs Act or specific fee-based programs).

Equal Employment Opportunity Commission (EEOC)

The EEOC, which investigates discrimination claims, is closed during the shutdown. The agency won’t be responding to inquiries during this time, but a limited number of services will still be available. If employees want to file a discrimination charge, they should be aware that time limits for filing a charge won’t be extended due to the shutdown.

Additional information on filing new charges, the status of pending charges, or other existing business with the EEOC, etc., will likely be delayed. During the shutdown, information on the EEOC website won’t be updated. In addition, transactions submitted via the website won’t be processed, and EEOC staff won’t be able to respond to requests or questions submitted to the EEOC, including those submitted by email or through its website, until the shutdown is over. 

Members of the public who call the EEOC during the government shutdown will be able to access the pre-recorded information available on the EEOC's Interactive Voice Response System, but EEOC staff will not be available to assist them. Email inquiries sent to the agency will be monitored for urgent matters but generally not addressed during the shutdown.

National Labor Relations Board (NLRB)

NLRB offices are closed during the shutdown, and hearings are postponed. Because documents may not be filed on the NLRB website during the shutdown, due dates for filing documents will be extended.

As the 6-month statute of limitations for filing unfair labor practice charges remains in effect, the agency recommends mailing or faxing a copy of the charge to the regional office during the shutdown.

Department of Labor (DOL)

The DOL is also shut down, except for activities such as those needed to protect life and property. All regulatory work has ceased, including the final rules on independent contractors and joint employers.

The Wage and Hour Division (WHD), which enforces laws such as the Fair Labor Standards Act and the Family and Medical Leave Act, dropped from 1,270 employees to 7. Employees won’t be able to file claims under such laws.

The agency will monitor and respond to child labor investigations and will pursue and address legal cases or investigations in jeopardy of being lost due to a statute of limitations or as otherwise ordered by the court. It will also continue to process certain benefits payments and support federal and state unemployment programs.

The Employee Benefits Security Administration (EBSA) generally stopped its research activities, audits, compliance assistance, and IT support.

The Veterans’ Employment and Training Service (VETS) stopped conducting investigations of the Uniformed Services Employment and Reemployment Rights Act.

U.S. Citizenship and Immigration Services (USCIS)

Employers must continue to use the Form I-9 during the shutdown to verify that an employee is eligible to work in the United States. The form must be completed within 3 business days after the employee’s first day of employment.

The form may be downloaded from the USCIS website. The agency expects to retain the majority of its employees during the shutdown.

Employers who use the online E-Verify system to confirm an employee’s eligibility to work in the United States may experience a system shutdown, however. In the event of an E-Verify shutdown, employers won’t be able to create E-Verify cases, run reports, or resolve tentative non-confirmations.

E-Verify employers should continue to complete a Form I-9 for each new employee. After the shutdown ends and the E-Verify system is operational, employers should create E-Verify cases for employees who were hired when the website was not available.

In the event of an E-Verify system shutdown, it’s likely that the USCIS will extend deadlines for creating E-Verify cases and resolving tentative non-confirmations. The agency is expected to provide further guidance.

Federal contractors and government employees

Federal contractors and government employees from shut-down agencies are either furloughed — prohibited from work and unpaid — or required to work without pay if their roles are deemed essential to public safety.

Payments to companies with a federal contract may be delayed, and they may receive a stop-work order. Contracts will not be issued or extended during the shutdown.

The Office of Federal Contract Compliance Programs website is not being updated during the shutdown.

Why compliance still matters, even without enforcement

Environmental compliance isn’t just about avoiding fines. It’s about protecting worker health, community trust, and long-term operational stability. During a government shutdown, the temptation to defer environmental investments or relax internal standards can grow. But doing so risks more than future penalties, it undermines the credibility of your environmental program and can lead to reputational damage.

It’s also important to note that state programs are still typically operational and active during federal shutdowns, so inspections and compliance activities for state-authorized programs continue.

Making the business case for continued investment

To convince management and stakeholders, frame environmental excellence as a strategic asset:

• Risk management: Environmental lapses can still be discovered post-shutdown, and penalties may be retroactive.
• Operational efficiency: Many environmental controls improve process reliability, reduce waste, and lower energy costs.
• Brand and stakeholder trust: Investors, customers, and communities increasingly expect companies to go beyond compliance.
• Permit renewals and expansions: Agencies may scrutinize historical performance when reviewing future applications.

Use real-world examples or internal metrics to show how environmental investments have paid off—even when enforcement wasn’t the driver.

Strategies for promoting excellence during a shutdown

Environmental professionals can lead by example and keep momentum going:

• Maintain internal audits and inspections: Show that oversight continues, even if external reviews pause.
• Communicate proactively: Share updates with leadership about ongoing compliance efforts and environmental performance.
• Highlight cost savings: Quantify how environmental initiatives reduce resource use, waste disposal costs, or downtime.
• Engage employees: Reinforce the company’s environmental values through training, recognition, and involvement.

Turning downtime into opportunity

A shutdown can be a chance to strengthen internal systems:

• Review and update environmental management plans.
• Conduct training or tabletop exercises.
• Evaluate historical data for trends or improvement areas.
• Prepare for future inspections with mock audits or gap analyses.

These efforts demonstrate commitment and prepare your team for when oversight resumes.

Key to remember: Environmental excellence isn’t just about avoiding fines. It’s about building a resilient, responsible, and respected operation. Even when enforcement pauses, your commitment shouldn’t.

The catastrophic incident

Picture an 80,000-barrel aboveground storage tank. On March 17, 2019, the circulation pump on the tank failed, allowing the release of a flammable butane-enriched naphtha blend. The release was undetected, as vapor accumulated in the area for 30 minutes. The vapor then ignited, resulting in a large-scale fire that spread to 14 other tanks. Fire crews were unable to extinguish it for three days. Black smoke cascaded into the community that was sheltering in place.

Then the petrochemicals, firefighting foams, and contaminated water broke past the secondary containment wall. An estimated 500,000 barrels of the materials then entered an adjacent bayou and reached a shipping channel contaminating a seven-mile stretch.

What did investigators find?

The CSB investigation found technical failures. The video identifies three important but missing things:

• Procedures to maintain the mechanical integrity of the pump,
• Flammable gas detection systems, and
• Remotely operated tank valves.

Outdated tank farm design was also a factor. Tanks were spaced close together and did not have subdivided containment systems.

Despite the process issues, regulatory shortfalls played a prominent role in the board’s findings. CSB Chairperson Steve Owens remarks, “A serious gap in federal regulations also contributed to the severity of this event.”

OSHA regulatory gap

The CSB video, "Terminal Faiure," points out that 29 CFR 1910.119, the OSHA Process Safety Management (PSM) standard, does not cover all flammable liquids. Those stored in atmospheric tanks and kept below their normal boiling point without chilling or refrigeration are not subject to the standard. This is referred to in industry as the “flammable liquid atmospheric storage tank exemption.” See 1910.119(a)(1)(ii)(B).

The terminal facility company took the position that the storage of the butane-enriched naphtha product in the tank was excluded from PSM coverage. It based this stance on the exemption. According to CSB, had the OSHA PSM standard applied to the tank and its equipment, the terminal facility would have been required to implement a formal PSM system.

That system would have given the company a better chance to identify and control hazards for the tank and its equipment. Had the terminal facility put a comprehensive PSM system in place that effectively identified and controlled the tank/equipment hazards, the company could have prevented this incident, argues CSB.

EPA regulatory gap

Unlike the PSM standard, the Risk Management Program (RMP) standard at 40 CFR 68 does not include an exemption for atmospheric storage of flammable liquids. However, CSB highlights that 68.115(b)(2)(i) has a significant loophole. It reads, “[I]f the concentration of the substance is one percent or greater by weight of the mixture, then, for purposes of determining whether a threshold quantity is present at the stationary source, the entire weight of the mixture shall be treated as the regulated substance unless the owner or operator can demonstrate that the mixture itself does not have a National Fire Protection Association [NFPA] flammability hazard rating of 4.”

The terminal facility determined that the butane-enriched naphtha product contained in the tank was not subject to RMP because it was an NFPA-3a rated material. While the CSB is not validating the terminal’s NFPA “3” finding, the board speculates that had the EPA RMP standard applied to the tank and its pump, this incident likely would not have occurred.

CSB recommends closing the regulatory loopholes

In the recently released video, CSB recommends that:

• OSHA eliminate the atmospheric storage tank exemption from the PSM standard — The board insists that the atmospheric storage tank exemption in the OSHA standard continues to allow for catastrophic incidents to occur. Without PSM coverage, necessary safeguards are not being implemented for equipment that should otherwise be covered, CSB says.
• EPA modify 68.115(b)(2)(i) to expand coverage of its RMP standard to include all flammable liquids, including mixtures, with a flammability rating of NFPA-3 or higher — NFPA-3 flammability rated materials have resulted in significant explosions and fires similar to those contemplated to occur from NFPA-4 rated materials, observes CSB.

Owens emphasizes, “We believe that our recommendations, particularly to OSHA and EPA, to expand regulatory oversight of these kinds of chemicals and facilities will help ensure that a similar incident does not occur in the future.”

Key to remember

A new CSB video recounts the events involved in a massive storage tank fire. At the same time, the video warns of blind spots in OSHA PSM and EPA RMP regulations that may lead to other incidents in the U.S.

Actionable steps

Federal crash investigators recommend that motor carriers take concrete steps to prevent future crashes like this one.

• Implement a driver monitoring system. This technology can detect driver inattention, distraction, and fatigue, issuing real-time alerts to refocus the driver. When paired with coaching, these systems are proven to reduce risky behaviors.
• Adopt collision avoidance technologies. Forward-collision warning systems and automatic emergency braking can alert drivers to slow traffic and apply the brakes if the driver fails to respond. Make these systems a non-negotiable add-on in your vehicle specs.
• Promote in-cab digital alerts. In-cab alert systems can warn drivers of dangerous slowdowns and queues in real time. These may be available as an add-on to your existing fleet management system.
• Strengthen policies and coaching. Go beyond “no handheld devices” policies. Use monitoring systems and event recorders to identify risky behaviors and provide targeted coaching. Document all violations and interventions, and hold regular safety meetings that include distraction awareness and technology updates.
• Watch for warning signs. Review roadside inspection data for signs of distracted driving. (In the case described above, the driver had been warned during a roadside inspection a year earlier about having a video game open on his phone.)

Key to remember: Distraction is not just a compliance issue — it’s a life-and-death risk. Prevention demands a multi-layered approach. Lead the charge by deploying technology, enforcing policies, and fostering a culture of vigilance and safety.

Do canceled tests count toward my annual testing numbers?

No. Even though a canceled test is of no fault of the employer, it’s neither positive nor negative. And DOT regulations state that canceled drug and alcohol tests can’t be applied toward the number of tests needed to meet the employer’s minimum random testing rates.

In addition, the employer can’t direct the employee to take a recollection for a canceled random test. A recollection only applies when you need a result (pre-employment, return-to-duty, and follow-up tests).

If a drug test performed on December 31st doesn’t have a medical review officer (MRO) result until January 2nd, does it count toward the previous year?

Yes. Guidance provided by FMCSA states that a test that was performed during the last testing cycle counts towards the total results for the year during which the specimen was collected, and not when the test was verified by the MRO.

How do we calculate how many drivers to select in our last draw of the year?

The DOT uses your average number of driving positions to calculate the number of tests you need.

Motor carriers must evenly divide the year using a testing cycle that fits their operations. The minimum is quarterly.

Using a quarterly testing cycle as an example, you must look at your driver rosters that were used in the first three quarters, plus the current number of drivers. Suppose they were 105, 135, 95, and 110. The average number of driving positions for year is 112 (you always round up). The FMCSA expects to see at least 56 drug tests and 12 alcohol tests by the end of the year.

The formula used each quarter is:

.5 x number of drivers ÷ number of testing cycles

.1 x number of drivers ÷ number of testing cycles

In the sample, this is how it played during the first quarter:

.5 x 105 ÷ 4 = 14 names for drug testing

.1 x 105 ÷ 4 = 3 names for alcohol testing

If you want to test at a higher rate, just multiply by the percentage you want (e.g., .6 for drugs, .3 for alcohol).

Using the example, suppose between missed and canceled tests, you only completed 40 drug and 8 alcohol tests by the end of the third quarter. You’re a little behind, since you should have completed 75 percent of your tests by now. This means you must select 16 names for drug testing and 4 for alcohol to meet the minimum annual testing rate. If you go with the minimum rate, you must make sure that everyone is tested and no tests are canceled.

Many carriers select at a higher rate throughout the year to compensate for incomplete tests. Others may elect to select additional names during the last draw to compensate for incomplete tests or the chance that some tests won’t be completed. However, when selecting at a higher rate, you must send everyone. You can’t hold back names just in case. They all must be sent by the end of the testing cycle.

Key to remember: FMCSA’s random testing rates are not suggested benchmarks that you can hopefully make. The number of completed tests is black and white and you either pass or fail during an FMCSA audit.

Details of the paper med card waiver

This waiver applies to both CDL and CLP holders. Non-CDL drivers aren't affected by this waiver since they're already required to be issued and to carry a paper medical card.

As a reminder, the two key impacts of this waiver include:

1. CDL drivers can use paper medical cards as proof of medical certification for up to 60 days after the certificate has been issued (following the DOT exam) while operating a commercial motor vehicle (CMV).
2. Carriers can use the medical card in the DQ file to be replaced by the CDL motor vehicle record (MVR) with the latest medical certification within 60 days.

The waiver’s terms and conditions

The waiver does not apply to:

• A driver who doesn’t have a copy of their current, valid MEC that was issued by a certified examiner 60 days prior; or
• A motor carrier that doesn’t have a copy of its driver’s current, valid MEC that was issued 60 days prior.

Additionally, the FMCSA reserves the right to revoke the waiver if safety conditions are negatively impacted in terms of the goals and objectives of the original order.

International Roadcheck 2025 results

Approximately 82 percent of commercial motor vehicles (CMVs) and 94 percent of CMV drivers got through the inspection without any out-of-service (OOS) violations.

In contrast, approximately:

• 18 percent (10,148) of inspected vehicles were placed OOS, and
• 6 percent (3,342) of CMV drivers were placed OOS.

Inspectors identified a total of 13,553 vehicle OOS violations and 3,317 driver OOS violations, as well as 177 hazardous materials/dangerous goods OOS violations.

2025 focus results

The 2025 driver focus area was on identifying false RODS, which are a serious violation that conceals a driver’s true number of hours on-duty or driving time. RODS violations accounted for 10 percent (332) of all driver OOS violations.

The 2025 vehicle focus area was on tires, which are critical for vehicle and roadway safety. In total, inspectors discovered 2,899 OOS violations related to tires, making up 21.4 percent of all vehicle OOS violations. Severe cuts, improperly rated tires, flat tires, and insufficient tread depth were all violations that could place a vehicle OOS.

Inspections by level

The 56,178 total inspection levels break down as follows:

• Level I Inspections: 30,060
• Level II Inspections: 13,150
• Level III Inspections: 11,743
• Level V Inspections: 1,225

Level I Inspections include a 37-step process that checks the driver’s credentials and the vehicle’s components while a Level II Inspection is a less-comprehensive walk-around driver and vehicle inspection. A Level III Inspection is a driver-only inspection and checks credentials, Clearinghouse status, and hours-of-service records. Finally, a Level V Inspection is a comprehensive vehicle-only inspection.

Top 5

Top 5 North American vehicle OOS violations:

1. Brake Systems: 3,304
2. Tires: 2,899
3. 20% Defective Brakes: 2,257
4. Lights: 1,737
5. Cargo securement: 1,549

Top 5 North American driver OOS violations:

1. Hours of service: 1,076
2. No commercial driver’s license: 810
3. No medical card: 493
4. False logs: 332
5. Suspended driver’s license/commercial driver’s license: 170

The top 5 North American hazardous materials/dangerous goods OOS violations:

1. Loading: 51
2. Shipping papers: 36
3. Placards: 32
4. Training certification: 30
5. Markings: 13

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!

What supervisors need to know: FMLA basics

Supervisors should remember that the FMLA gives eligible employees up to 12 workweeks of unpaid, job-protected leave in a 12-month leave year period for certain qualifying reasons. Supervisors benefit from remembering that:

• Employees might be gone for long or short periods, or have their schedules reduced, even to eliminate overtime, even if the employee’s leave causes hardship.
• After FMLA leave, they must return employees to their position or an equivalent one.
• They must not make employees feel they should not take leave or retaliate against employees because they ask for or take leave.
• They should let someone in HR know when an employee asks for time off for a potentially FMLA-qualifying reason.

Toolbox tip: – What should you do?

This morning, Joe Employee asked you for two weeks off for an upcoming medical procedure. Joe indicated that he would need the leave to begin in about a month.

At the time of Joe’s leave, the department will be at its busiest time of year. Vacations were being denied for that time frame.

You thank Joe for letting you know and tell him you’ll get back to him the next day or so.

What should you do?

1. Try to talk Joe out of taking the leave or postponing it, given the hardship his absence would have on the department.
2. Remind Joe that even vacations were being denied.
3. Contact HR to let them know about Joe’s request, since it could be FMLA leave.
4. Fire Joe and hire someone who won’t need time off.

The best answer is #3. The other responses risk violating Joe’s FMLA rights.

Trying to talk Joe out of the leave or postponing it would have a chilling effect on Joe’s leave request, which courts have seen as interfering with FMLA rights. The same for pointing out that even vacations are being denied.

Firing Joe because he needs time off has a high violation risk, since the FMLA gives employees the right to job-protected leave.

Key to remember: Supervisors might have been trained in the FMLA when they first took on their role, but might have forgotten much of it. Refresher training can help avoid missteps that can risk a violation and a lawsuit.

The story

Aileen began having breathing issues and believed the building she worked in was the cause. She asked to change her schedule so she would spend less time in the building. She also asked about relocating her workstation. The employer granted both requests.

A couple of months later, Aileen was diagnosed with breast cancer. She asked for leave under the federal Family and Medical Leave Act (FMLA). The employer granted the leave after she gave HR a certification from her oncologist.

A few months after that, Casey, a union steward, sent Aileen an email mentioning that he had heard about her cancer from Bonnie, an HR Manager. He said he thought her cancer caused her breathing issues, not the building.

Aileen was surprised that Casey knew about her cancer, since the only company people she told were a manager and a work friend. Bonnie, however, had information from Aileen’s FMLA certification.

After her cancer treatment, Aileen returned to work, but worked remotely three days a week. Her breathing condition, however, continued to decline, and she asked to work full-time remotely. The employer agreed.

Despite this work accommodation, Aileen sued her employer for:

• Disability discrimination,
• Failure to accommodate,
• Unlawful disclosure, and
• Retaliation.

Only the unlawful disclosure claim survived the lawsuit.

The courtroom scene

In court, the employer argued that it didn’t make a medical inquiry because the FMLA certification form “is not an inquiry that is intended to reveal or necessitates revealing a disability [as] an employee could be eligible for FMLA leave based on a serious medical condition that is not considered a disability….”

The employer also claimed that even if it made such an inquiry, Aileen failed to show that her medical condition was confidential at the time of the disclosure.

Aileen, however, gave enough evidence that Bonnie was the source of the allegedly unlawful disclosure to Casey and that Bonnie got the information from the FMLA certification.

The court sided with Aileen and said that asking for an FMLA certification is making a medical inquiry, and the ADA restricts what employers may do with that information. The FMLA regulations also call for medical confidentiality.

Employers can’t avoid that restriction simply because their demand for information is embedded in the mechanics of FMLA leave approval. Employers that condition entitlement to FMLA leave on employees disclosing medical information on a certification still make ADA medical inquiries, triggering their confidentiality requirements.

Mullin v. Secretary, U.S. Department of Veterans Affairs, 11^th Circuit Court of Appeals, No. 22-12354, August 8, 2025.

Key to remember: Employers need to keep employee and applicant medical information confidential or face claims of unlawful disclosure.

FMLA and weight loss surgery

When it comes to weight loss surgery, an employee may have been perfectly healthy before the procedure, so the surgery itself might not be required due to the employee’s health reasons. An employee might, however, have underlying health conditions prompting the procedure.

It’s true that conditions for which cosmetic treatments are given (such as most treatments for acne or certain types of plastic surgery) are not serious health conditions unless inpatient hospital care is needed or complications develop. This caveat generally points to the definition of a serious health condition (inpatient care or continuing treatment). Therefore, if the treatment results in a serious health condition, it qualifies for FMLA protections.

The bottom line is, if you have an employee who needs time off for weight loss surgery that requires an overnight stay in a health care facility, the reason for the absence would qualify for FMLA protections. If the employee is incapacitated for more than three days and receives treatment twice, the reason would also qualify for FMLA protections.

What to do

As with any type of FMLA case, if an employee puts you on notice of the need for leave for elective surgery, including weight loss surgery, treat it as you would any other notice of the need for leave. Provide an eligibility/rights and responsibilities notice, and request a medical certification.

The certification should give you the information needed to determine if the employee has (or will have) a serious health condition.

If the certification indicates that the employee has not had or does not need an overnight stay, move on to whether the employee will be incapacitated for more than three days and will need continuing treatment. Continuing treatment would need to involve treatment at least once, followed by a regimen of continuing treatment (such as a prescription or therapy), or treatment at least twice.

1. What are the main OSHA standards that apply to cranes, lifts, and scaffolds?

The regulations are extensive, both for general industry and construction. While most of the requirements are very similar, we encourage you to review the regulations specific to your industry.

Construction:

• Cranes: 29 CFR 1926 Subpart CC (Cranes & Derricks in Construction)
• Aerial lifts: 29 CFR 1926.453 (part of Subpart L – Scaffolds)
• Scaffolds (including scissor lifts): 29 CFR 1926 Subpart L

General industry:

• Cranes: 29 CFR 1910.179 (Overhead & Gantry Cranes); 1910.180 (Crawler locomotive and truck cranes)
• Aerial lifts & scissor lifts: 29 CFR 1910.67
• Scaffolds: 29 CFR 1926 Subpart L
• Scissor lifts: 29 CFR 1926 Subpart L

Note that OSHA considers scissor lifts to be “mobile scaffolds” which are found in 1926 Subpart L and are applicable to both general industry and construction.

2. Who is allowed to operate cranes and aerial lifts?

OSHA requires only trained and qualified operators—but the qualification process varies slightly.

Construction: Crane operators must be certified by an accredited testing organization or through an audited employer program (1926.1427). Aerial lift operators must complete task-specific training before use.

General industry: While crane operators do not always need formal third-party certification, they must be designated, trained, and competent to operate safely (1910.179). Aerial lift operators must still be trained per 1910.67(c)(2).

In both settings, refresher training is required if unsafe operation or new equipment is introduced.

3. How often do cranes, lifts, and scaffolds need to be inspected?

Inspection frequency and documentation are important for all pieces of equipment.

• Cranes: Daily visual checks before use; monthly checks; and annual inspections by a qualified person are required in both industries.
• Aerial lifts: Pre-use inspections each day of operation are mandatory for both industries.
• Scaffolds: Must be inspected by a competent person before each shift and after any event that could affect stability.

4. What fall protection is required when using this equipment?

• Aerial lifts: Both standards require a body harness and lanyard attached to the lift’s designated anchor point.
• Scaffolds: Construction regulations have different fall protection requirements depending on which type of scaffold is used, while general industry applies fall protection at 4 feet (1910.28).
• Scissor lifts: While it is highly recommended, fall protection is not required in scissor lifts if there is adequate guardrails in good condition.

5. What are common violations to watch out for?

Top OSHA citations include:

• Untrained or uncertified operators
• Missing or damaged guardrails on scaffolds
• Failure to perform required inspections
• Overloading equipment beyond capacity
• Lack of fall protection during maintenance or setup

Proactive training, documented inspections, and strong safety culture reduce risk and help avoid citations under either standard.

Key to remember: Compliance with OSHA’s cranes, lifts, and scaffolds regulations protects workers and avoids hefty penalties from violations.

OSHA’s latest action

Without announcement in the first week of August, the memo, “Violation Grouping and Discretionary Ungrouping,” dated April 3, 2024, slipped off the active OSHA memos webpage. It landed squarely on the OSHA archives page. Now an OSHA spokesperson reveals to J. J. Keller® Compliance Network, “The referenced OSHA memo … was determined to be unnecessary since agency policy in the OSHA Field Operations Manual provides clear guidance to OSHA field staff on when citation item grouping may be considered.” What’s more, that manual “provides discretion to Area Directors to consider the grouping status of citation items for the purpose of achieving an appropriate deterrent effect,” the spokesperson adds.

Background on the memo

The memo first surfaced in January 2023, entitled, “Exercising Discretion When Not to Group Violations.” In it, OSHA explained that enforcement activity may lose its deterrent effect when citations are grouped. Ungrouping, the agency claimed, also offered something else — it would “more accurately capture an employer’s overall lack of compliance.”

In the memo, OSHA went on to discuss the general decision-making authority of Regional and Area Directors to “refrain from grouping violations” where they are separate and distinct. The agency argued that this option “helps deter employers from flagrantly disregarding their responsibilities to protect workers and comply with OSHA standards and regulations.”

Then OSHA revised the memo in April 2024, keeping much of the same rhetoric with a new subject line, “Violation Grouping and Discretionary Ungrouping.” This time, OSHA went into greater detail. It stressed that OSHA offices could ungroup for separate and distinct violations, even if other OSHA policies or directives recommend grouping the violations. The document advocated that discretionary ungrouping should be considered where one or more factors are met:

• The employer is currently on the Severe Violator Enforcement Program (SVEP) list OR has a history of willful, repeat, or failure-to-abate violations;
• The latest violative conditions are related to an incident that resulted in a fatality, catastrophe, or reportable injury/illness;
• The inspection resulted in one or more willful, repeat, or failure-to-abate violations, or a significant number of serious violations;
• The inspection was initiated due to a release of a highly hazardous chemical;
• The inspection identified worker exposures to hazardous chemicals over the applicable OSHA permissible exposure limit; or
• The inspection uncovered violations related to National Emphasis Program hazards.

In addition, Area Directors were informed that they may use discretionary ungrouping in the absence of any of the above factors.

Only Field Operations Manual (FOM) remains

The ungrouping specifics from the April 2024 memo are not found in the OSHA FOM. Instead, chapter 4, Violations, of the manual offers a short section X that outlines OSHA policies for:

• The mandate to combine violations of a single regulation (e.g., 1910.212(a)(3)(ii)) having the same classification (see section X.A.),
• The ability to group violations into a single one under certain conditions (see section X.B.), and
• Situations when violations cannot be grouped, including for multiple inspections, separate establishments of the same employer, General Duty Clause violations, and egregious violations (see section X.C.).

Section X.B. reads, “When a source of an identified hazard involves interrelated violations of different standards, the violations can be grouped into a single violation …” The statement from the OSHA spokesperson is similarly worded when it says, “grouping may be considered,” and “consider the grouping status of citation items.” Does this mean that violations by default are ungrouped? Does it also mean that Regional or Area Directors are permitted to then keep them ungrouped or otherwise separate grouped violations?

The answers are unclear because the FOM does not explicitly give directors the latitude to ungroup, aside from the violation types that cannot be grouped per section X.C. Likewise, chapter 4 does not cover when it’s advisable to keep violations ungrouped or to convert grouped violations to ungrouped ones. Moreover, it makes no mention of deploying ungrouping for an appropriate deterrent effect.

Key to remember

OSHA inactivated its “Violation Grouping and Discretionary Ungrouping” memo in August. The agency’s FOM continues to provide OSHA field staff with instruction on when a citation item may be combined or grouped or when it must not be grouped. However, unlike the memo, the FOM does not explore when agency directors should give thought to ungrouping violations, beyond those in section X.C.

OSHA’s announcement on helmets vs. hard hats

OSHA released a Safety and Health Bulletin (SHIB 11-22-2023) on November 22, 2023, detailing the key differences and benefits of using modern safety helmets over traditional hard hats.

And just a few weeks later, in the December 11, 2023 Trade Release, the Agency announced it would now require its inspectors to wear Type II head protection, which is also commonly referred to as safety helmets.

The two main benefits of Type II safety helmets

The November 22, 2023 SHIB discussed two main benefits of choosing modern safety helmets over traditional hard hats -- the construction of materials and the use of chinstraps.

And while OSHA has recognized the benefits of Type II safety helmets, and is actively taking steps to protect its own employees, it’s important to understand that there is not a new requirement for employers to make the switch to safety helmets.

That being said, a growing number of employers have recognized the benefits of added head protection and are choosing to use Type II helmets for their workers. In addition, some clients are starting to contractually require their construction contractors to make the switch as well.

Understanding the different types of head protection

Hard hats will have a Type I or Type II rating on the manufacturer’s sticker. These markings are based on ANSI Z89.1’s impact ratings.

Type I hard hats protect from objects or impacts from the top center area of the hard hat and are often used in work areas with no lateral head impact hazards.

Type II hard hats, on the other hand, offers protection from both top and lateral impacts and objects and is often found on construction job sites or complex general industry settings where workers face multiple head contact exposures.

Hard hats are classified based on their level of voltage protection. See the chart below.

Choosing the right head protection for your employees

Employers should conduct a job hazard analysis and/or a PPE assessment to determine which style hard hat is best for their workers. In general, OSHA recommends the use of Type II safety helmets at the following locations:

1. Construction Sites: For construction sites, especially those with high risks of falling objects and debris, impacts from equipment, or slips, trips, and falls, safety helmets have enhanced impact resistance and additional features that offer superior protection compared to the components and construction of traditional hard hats.

2. Oil and Gas Industry: In these sectors where workers face multiple hazards, including potential exposure to chemicals and severe impacts, safety helmets with additional features can provide comprehensive protection.

3. Working from Heights: For tasks or jobs that involve working from heights, safety helmets offer protection of the entire head and include features that prevent the safety helmet from falling off.

4. Electrical Work: For tasks involving electrical work or proximity to electrical hazards, safety helmets with non-conductive materials (Class G and Class E) provide protection to prevent electrical shocks. However, some traditional hard hats also offer electrical protection.

5. High-Temperature Environments: In high temperatures or where there is exposure to molten materials, safety helmets with advanced heat-resistant properties can provide additional protection to workers.

Key to remember: While there isn’t a new requirement for safety helmets, employers should review their workplace hazards to determine which style of hard hat will best protect their employees.

How can employers recognize lithium-ion safety during fire prevention week?

Provide fire safety training: Organize sessions on general fire prevention and lithium-ion battery safety. Cover topics like safe charging, storage, inspection, disposal, and emergency response.

Share resources: Distribute materials and safety posters throughout the workplace. Highlight key fire risks, including electrical hazards, clutter, and battery safety.

Review policies: Update fire safety policies and ensure all battery-powered equipment is used and maintained according to manufacturer guidelines.

Promote safe disposal: Set up battery recycling stations and educate employees on proper disposal methods for batteries and other fire hazards.

Conduct fire drills: Practice evacuation plans and ensure all employees know escape routes and assembly points.

How can workers stay safe with lithium-ion batteries at work and home?

How can workers stay safe with lithium-ion batteries at work and home? Workplaces often rely on rechargeable batteries and electrical equipment, which if mishandled, can pose serious fire hazards. To help prevent incidents, employees should:

• Use only manufacturer-approved chargers and batteries.
• Store batteries and flammable materials in cool, dry places, away from heat and moisture.
• Inspect batteries and electrical equipment regularly for signs of damage.
• Report any fire hazards or safety concerns immediately.
• Participate in fire safety training and follow all workplace procedures.

Battery-related fires can happen at home just as easily as they can at work, especially with the growing number of personal devices such as smartphones, laptops, e-bikes, power tools, and electric vehicles. Here are some strategies to include:

• Install smoke alarms and test them monthly.
• Avoid charging devices on soft surfaces or near flammable materials.
• Don’t use damaged or off-brand batteries and chargers.
• Keep batteries out of reach of children and pets.
• Recycle old batteries at approved centers; never throw them in the trash.
• Create and practice a fire escape plan with your family.

Why focus on lithium-ion batteries?

Lithium-ion battery fires are an escalating concern across the United States. These batteries pose serious fire risks when damaged, improperly charged, or disposed of incorrectly. Fires involving lithium-ion batteries burn hotter and spread faster than traditional fires, making them especially dangerous.

Since 2017, incidents have increased by approximately 20% annually. According to the NFPA, urban areas face the highest risk. In New York City alone, 268 lithium-ion battery fires were recorded in 2023, resulting in 18 deaths. As the use of rechargeable devices and electric vehicles continues to grow, these fire incidents are expected to rise nationwide.

Key to remember: Lithium-ion batteries are becoming more popular and essential, but they must be handled responsibly. October’s annual focus on fire prevention is a great time to reinforce safety practices, educate workers, and take steps to prevent fires at work and at home.

The intent of the standard

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

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

License and certification Q&A

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

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

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

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

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

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

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

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

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

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

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

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

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

Operator Impairments

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

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

Keys to Remember

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

What does SVEP mean for employers?

1. Heavier financial penalties - OSHA citations can already run into six figures per violation, with penalties adjusted annually for inflation (over $16,000 per serious violation and more than $165,000 for willful/repeat in 2025). SVEP cases often involve multiple willful or repeat violations, which can balloon into millions of dollars in fines.
2. Follow-up and nationwide Inspections - Employers in SVEP are subject to follow-up inspections at the cited facility. OSHA can also inspect other worksites under the same corporate entity to look for similar hazards, expanding liability across the company.
3. Mandatory abatement and oversight - Companies could be required to adopt strict abatement measures, such as third-party audits, formal safety management programs, or regular progress reports. On top of that, failure to comply with these requirements can trigger additional citations.
4. Public exposure and reputational damage - SVEP cases are publicly listed on OSHA’s website, often with press releases highlighting employer negligence. This can potentially damage relationships with customers, investors, and potential hires.
5. Long-term monitoring - Unlike routine citations, SVEP designations remain active until an employer demonstrates sustained compliance. So, even after abatement, companies may remain under constant pressure for years.

Avoid becoming a SVEP

Avoiding OSHA’s Severe Violator Enforcement Program starts with taking a proactive approach to workplace safety rather than waiting for an inspection or incident to force change. Employers that treat compliance as the bare minimum often miss hazards that lead to repeat violations, costly penalties, and public exposure under SVEP. The key is to focus on prevention: identify risks before OSHA does, address them quickly, and build systems that demonstrate a genuine commitment to worker protection. By embedding safety into daily operations and ensuring accountability at every level, employers can significantly reduce the chance of being flagged as a severe violator.

One of the most effective strategies is conducting regular audits and job hazard analyses. These assessments allow employers to identify risks before they result in incidents or attract OSHA’s attention. Special focus should be given to high-emphasis hazards like fall protection, machine guarding, trenching, and confined spaces, as these are frequently tied to SVEP cases. By prioritizing these high-risk areas, employers can address the hazards most likely to cause severe injuries or fatalities and avoid the repeat violations that draw heightened enforcement.

Equally important is responding quickly and decisively when OSHA does issue citations. A failure-to-abate violation, where hazards are not corrected after being identified, is one of the fastest ways into SVEP. Employers who take immediate corrective action, document their efforts, and follow through on abatement not only reduce risk for their workers but also demonstrate to regulators that they are serious about compliance.

Training and communication also play a central role. Workers must be equipped with the knowledge and resources to recognize hazards and protect themselves. But training alone is not enough — employers need to foster a culture where employees feel comfortable reporting unsafe conditions without fear of retaliation. When workers trust that their voices will be heard and that hazards will be corrected, issues can be addressed before they escalate into violations or incidents.

Then finally, employers who invest in comprehensive safety management systems put themselves in the best position to avoid SVEP. Formal programs that include regular safety audits, clear accountability, and, where appropriate, third-party reviews can help identify systemic issues that might otherwise go unnoticed. These systems not only prevent repeat violations but also provide documented evidence of a company’s ongoing commitment to compliance, an important factor if OSHA ever comes knocking.

Keys to remember: By staying ahead of hazards, correcting violations promptly, empowering workers, and maintaining a strong safety management system, employers can greatly reduce their chances of being placed in the severe violator enforcement program.