Update: EPA withdraws direct rule, keeps proposed rule for alternative CCR reporting option

The importance of CPR and early defibrillation

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

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

Signs and symptoms of cardiac compromise

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

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

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

OSHA requirements regarding CPR

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

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

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

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

OSHA requirements regarding AEDs — you might need a prescription

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

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

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

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

Training requirements

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

Keys to Remember

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

Single-use plastics: New bans and restrictions

Several states have enacted new bans on polystyrene foam containers, plastic straws, and produce bags:

• California SB 1046: As of January 1, 2025, expanded polystyrene (EPS) food containers are banned unless they meet a 25% recycling rate. Pre-checkout bags must be compostable or made of recycled paper.

• Delaware SB 51: Foam containers and plastic stirrers are banned unless requested by the customer.
• Oregon SB 543: Bans EPS containers and food packaging with intentionally added PFAS.
• Virginia: No food vendor may use EPS containers starting July 1, 2025.

Compliance tip: Audit your packaging inventory and supplier certifications. Ensure alternatives meet compostability or recyclability standards.

Extended producer responsibility (EPR): Expanding nationwide

EPR laws now apply in several states. These laws require companies to help pay for recycling and report packaging data.

• Maryland SB 901: Allows multiple Producer Responsibility Organizations (PROs) and mandates cost-sharing for recycling.
• Washington SB 5284: Targets consumer packaging with compliance deadlines starting in 2028.
• Colorado: Unregistered producers are banned from selling covered products as of July 1, 2025.
• California SB 54: Revised draft rules released in May 2025 include new compliance dates and exemptions.

Compliance tip: Register with your state’s PRO, submit packaging data, and prepare for fee schedules. Track deadlines and exemptions closely.

Chemical recycling: Regulatory reclassification and impacts

States like Texas and Pennsylvania now classify chemical recycling as manufacturing, not waste management. This shift encourages investment but also changes permitting and emissions reporting obligations.

Compliance tip: If your facility uses or contracts chemical recycling, review air and water permits. Ensure alignment with manufacturing regulations.

Per and polyfluoroalkyl substances (PFAS): Phase-outs and hazardous waste updates

More states are banning PFAS in packaging and cookware:

• Minnesota, Oregon, Rhode Island, and New Mexico have banned or phased out PFAS in consumer products.
• Illinois SB 727: Aligns PFAS limits with EPA standards.

Compliance tip: Update product safety data sheets (SDS) and conduct PFAS audits. Prepare for new reporting under TSCA Section 8(a)(7), including data on manufacture, use, and disposal.

Circular economy and composting: Recent mandates

States are setting zero-waste goals and requiring composting:

• Hawaii HB 750: Launches a statewide recycling needs assessment.
• Maine LD 1065: Requires large food waste generators to compost by 2030.

Compliance Tip: Evaluate organics diversion programs and infrastructure. Consider partnerships with composting facilities.

EHS teams: What to do now

• Map your regulatory exposure: Identify which state laws apply to your operations.
• Engage with PROs: Register, report, and participate in rulemaking.
• Train staff: Ensure procurement, operations, and legal teams understand new requirements.
• Audit packaging and waste streams: Replace banned materials and optimize recycling.
• Monitor emerging legislation: Stay ahead of new bills and compliance deadlines.

Key to remember: Staying compliant in 2025 means more than avoiding fines. EHS teams must lead efforts to meet new waste laws and support sustainability goals.

e-Manifest compliance check

Use this checklist to help you ensure that your business is set to comply with the rest of the Third Rule’s requirements that take effect in December.

Use e-Manifest resources for additional help

EPA has multiple resources to help regulated hazardous waste handlers comply with e-Manifest regulations, including the upcoming Third Rule’s requirements that take effect on December 1, 2025. Consider using the resources the agency provides on “The Hazardous Waste Electronic Manifest (e-Manifest) System” website, such as:

• Webinars,
• Demonstration videos,
• General and user-specific FAQs about the e-Manifest program, and
• The e-Manifest Helpdesk for industry users.

The compliance checklist and e-Manifest resources can help you ensure that your facility will be ready to comply with the rest of the Third Rule’s requirements by December.

Key to remember: The remaining e-Manifest Third Rule requirements take effect on December 1, 2025. Facilities should confirm that they’re prepared to comply.

How equipment failure turns into a hazard:

Neglected maintenance can create serious risks, including:

• Mechanical failures – unmaintained machinery can suddenly seize, break apart, or eject parts.
• Electrical hazards – frayed cords, worn insulation, or faulty breakers can cause shocks or fires.
• Chemical releases – worn seals, cracked tanks, or failed valves can ultimately lead to hazardous spills.
• Ergonomic strain – poorly calibrated or damaged equipment can force employees into awkward or unsafe positions.

These risks aren’t just hypothetical; OSHA frequently cites employers after incidents where the root cause was poor or non-existent preventative maintenance.

Key elements of a safety driven PM program:

1. Risk based scheduling – prioritize maintenance on equipment with the greatest safety risks (ex. forklifts, overhead cranes, pressure vessels, and electrical systems). Maintain a critical equipment registry that highlights assets where failure could lead to injury or regulatory violations.
2. Standardized procedures – document step-by-step PM tasks with a strong emphasis on safety. For example, include lockout/tagout steps, PPE requirements, and confined space entry procedures. Train employees to follow SOPs consistently to reduce human error.
3. Qualified personnel – preventative maintenance is only as good as the people performing it. Ensure technicians are trained not only on the task, but on the safety hazards of the equipment.
4. Integrated safety checks – incorporate safety specific items in PM inspections such as checking emergency stops, guarding, grounding, or ventilation performance.
5. Document everything – use digital tracking to log inspections, repairs, and part replacement. This protects employers during audits and helps spot recurring issues.
6. Operator involvement and pre-use checks – empower front-line employees to perform daily pre-use inspections such as forklift inspections and machine guarding verification. Create simple reporting tools to flag issues before they escalate.
7. Corrective action and follow-up – establish a system for tracking identified hazards until resolution through work orders or corrective action logs. Communicate completion of corrective actions to affected employees.

A well-run preventative maintenance program is, at its heart, a safety program. While cost savings and productivity gains are valuable, the greatest benefit is protecting workers from harm’s way. By preventing equipment failures, ensuring safety systems function correctly, and reinforcing a culture of care, PM programs create a safer workplace where employees can perform their jobs with confidence. Simply put, machines can be replaced – people cannot. That’s why preventative maintenance isn’t just smart business, it’s a commitment to worker safety.

Keys to remember: A safety driven PM program isn’t just about keeping machines running. It’s about making sure every inspection, service, and repair is performed with worker safety in mind.

4 scenarios and best practices

The four disqualification scenarios below are quite common, but the recommended best practices can help avoid them.

1. Expired medical certifications

Drivers holding a Commercial Driver’s License (CDL)Drivers must carry a valid medical certificate or have the certification on their motor vehicle record (MVR). If the certification expires, the driver cannot operate any CMV.

Examples of when medical certifications may expire include:

• The medical exam wasn't scheduled early enough to allow for examiner-required tests or input from a specialist, which may impact a certification decision. An examiner cannot extend an expiration date for any reason.
• CDL driver exam information may not transfer to their state licensing authority in a timely manner and the MVR will show “Not-certified” if the problems aren't resolved before the expiration date.

Best practices:

1.Track in a fleet management system, all driver medical certification expiration dates and verify that each medical exam is scheduled with sufficient time prior to expiration.

2.Use continuous MVR monitoring to receive alerts on driver licensing status changes.

2. Suspended or revoked CDLs

A licensing authority can suspend or revoke a CDL for reasons like driving under the influence (DUI) in a person vehicle or having unpaid child support obligations. If the carrier doesn’t monitor a driver’s MVR more than the minimum of once per year, the driver may lose CDL privileges or any ability to operate vehicles without their company being aware.

Best practices:

1.Use continuous MVR monitoring to receive alerts on driver licensing status changes.

2.Implement a company policy requiring drivers to immediately notify the company of any moving violation or warning, in addition to convictions.

3. Missed drug and alcohol tests

CDL-vehicle drivers must be part of a Department of Transportation (DOT) drug and alcohol testing program. This includes pre-employment, random, and post-accident testing. A top acute (most serious) DOT audit violation each year is issued to carriers not having a DOT testing program. The DOT requires a testing program for any carrier operating CDL vehicles in intrastate or interstate commerce.

Best practices:

1.Hire a third party to provide compliance guidance on the applicability of safety regulations, and

2.Outsource the management of any DOT drug and alcohol testing and Clearinghouse requirements.

4. Failed English Language Proficiency (ELP) assessments

At hire, carriers must verify that CMV drivers are able to read and speak the English language well enough to:

1.Interact with enforcement officers,

2.Complete forms, and

3.Understand road signs.

Since June 25, 2025, during a roadside inspection, enforcement can conduct a two-step assessment of ELP. Officers can place a driver out-of-service, disqualifying them, if the driver cannot answer basic questions or recognize road signs.

Best practice:

1.Assess all driver applicants by simulating a roadside inspection as the last step of the road test process.

Key to remember: Closely monitor driver qualifications with best practices that exceed regulatory minimums.

What you need to know about the new HOS programs

The Split Duty Period pilot program will allow drivers to pause the 14-hour driving window for no less than 30 minutes and no more than 3 hours. This allows drivers to choose to extend the 14-hour window by taking one off-duty, sleeper berth, or on-duty/non-driving period within that time limit.

Participation in this program is limited to around 256 commercial driver’s license holders who meet the eligibility criteria. Passenger-carrying vehicles aren’t eligible.

The Flexible Sleeper Berth pilot program will look to more sleeper berth split options beyond the current 8/2 and 7/3 options (e.g., splitting the 10-hour-off-duty requirement into 6/4 and 5/5/ splits). This would allow temporary regulatory relief from the regulation requiring one period of at least 7 consecutive hours in the sleeper berth.

Participation in this program is limited to around 256 commercial driver’s license holders who regularly use the sleeper berth. Participants’ data will be shared for 4 months, during which they will spend 1 month following the current regulations and 3 months under the new proposed flexibility.

FMCSA data collection

The Federal Motor Carrier Safety Administration (FMCSA) plans to study these two programs to see how they may increase flexibility in current hours-of-service (HOS) regulations.

For the first program, the FMCSA will collect data and determine whether the added flexibility has an impact on safety outcomes.

For the second program, the FMCSA will test the safety of splitting up off-duty time and explore how it may impact driver fatigue and other safety performance indicators.

Get your comments in

The FMCSA is requesting comments for these two new programs by November 17, 2025, through the Portal, by mail, by hand delivery, or via fax.

The requirement

Under 49 CFR 396.17, every CMV — including trucks, tractors, and trailers of any size — must undergo a comprehensive inspection at least once every 12 months. This is tied to the “commercial motor vehicle” definition in 49 CFR 390.5T, which includes vehicles or vehicle combinations over 10,000 pounds and operating in interstate commerce, even if a commercial driver’s license is not required.

The inspection must cover all components listed in Appendix A to Part 396, and proof of passing the inspection must be carried on or with the vehicle at all times.

Acceptable documentation

How does a driver prove the vehicle(s) passed the inspection? There are two ways:

1. Carry a copy of the full inspection report described in 396.21; or
2. Point to a sticker or decal on the vehicle, showing:
   1. The date of inspection (not the due date);
   2. The name and address where the full inspection report is located (so an inspector knows where to find it);
   3. A unique vehicle ID (VIN, plate number, fleet number, etc.), unless the vehicle is clearly marked with a unique ID (cross-referenced on the long inspection form); and
   4. A certification that the vehicle passed inspection under 396.17.

The sticker may be located anywhere, as long as the driver knows where it is and it’s not overly difficult for the inspector to find it.

Violations typically occur due to:

• Missing, obscured, or expired inspection documentation on the vehicle;
• Failure to inspect trailers, converter dollies, or other vehicles that form part of a CMV;
• Misunderstanding the required inspection interval (or simply forgetting to do the inspection on time); or
• Assuming that some other type of inspection qualifies.

During an audit, if the investigator finds that 10 percent or more of your fleet’s annual inspections were not done as required, it’s considered a “critical” violation that could harm your safety rating. In addition, a J. J. Keller analysis found that the average fine that motor carriers paid for this violation was $5,713 (over the period from 2021-2024).

Liability is another key concern. A crash involving a CMV that wasn’t inspected in the past year could call your safety practices into question and result in a sizable verdict in the plaintiff’s favor.

How to stay compliant

Motor carriers must take proactive steps to avoid these costly violations: • Ensure annual inspections are performed on time. Schedule inspections before the 365-day mark from the last inspection.

• Inspect all vehicles. From lightweight one-axle pieces of equipment to flatbeds, shuttle buses, dry vans, and Class 8 tractors, be sure to include all vehicles in the inspection program, not just power units.
• Use qualified inspectors. Inspectors must meet the qualifications outlined in 396.19 — even if they work for a third party — and you must be prepared to provide proof of those qualifications to an auditor. An individual may be qualified by having at least one year of experience, but you need to be sure it’s documented.
• Maintain proper documentation. Ensure drivers know where the sticker or report for each vehicle is located and that it’s legible and current. Also be sure to keep inspection reports for 14 months.
• Ensure your state inspection program is “equivalent.” If your vehicles are inspected annually under a state-mandated program, make sure the program is on the federal list of inspection programs that are considered “equivalent” to the inspection required under 396.17. If not, you’ll need to do another inspection before operating across state lines.
• Audit your fleet regularly. Conduct internal audits to verify inspection dates and documentation. Identify and correct gaps in your compliance program.
• Train drivers and maintenance staff. Educate drivers on the importance of carrying proof of inspection, and on the importance of checking for that proof during their pre-trip inspections. Train maintenance personnel on inspection standards and documentation requirements.

With violations climbing, motor carriers must treat 396.17 compliance as a top priority. The cost of noncompliance isn’t just financial — it can lead to out-of-service orders, fines, failed audits, liability, and reputational damage.

Key to remember: Stay ahead of the curve when it comes to annual inspections. Review your inspection protocols and ensure every vehicle in your fleet is documented, inspected, and compliant.

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!

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.

Temporary reassignment for intermittent leave

When employees need foreseeable intermittent or reduced-schedule FMLA leave for planned medical treatments, employers may temporarily reassign them to a different position if it better accommodates the leave schedule.

This alternate position must have the equivalent in pay and benefits, but can differ in job duties. The reassignment should last only as long as needed, and employers must restore employees to their original or an equivalent position when the need for intermittent leave ends.

Unforeseeable intermittent leave works differently. When employees need unforeseeable intermittent leave, employers may not temporarily reassign employees to a different position. Employers may only reassign employees for intermittent leave needed for planned medical treatment.

Reassignment after leave

The FMLA guarantees employees the right to return to the same or an “equivalent” (virtually identical) position after leave. An equivalent position is defined as one with not only substantially similar pay, but also benefits and working terms.

These terms include:

• Location,
• Shift,
• Schedule, and
• Opportunity for bonuses, profit-sharing, and other similar discretionary and non-discretionary payments.

If business needs require structural changes, employers should document that these changes would have occurred regardless of the employee’s leave status.

Employers should document all communication, decisions, and the rationale for job reassignments to help show compliance.

Key to remember: Employers may reassign employees on FMLA leave to other positions only in certain limited situations.

Estimate for the Annual Summary

If the day count continues into the next calendar year, employers can use the estimate to prepare the 300A Annual Summary. OSHA addresses this at 1904.7(b)(3)(ix). Again, the employer must later update the 300 Log when the actual number of days becomes known. However, the employer does not need to update the 300A after it was certified and posted, even if the estimated day count was later corrected.

When a case carries over to another calendar year, do not re-enter the case in the next year’s 300 Log. The purpose of counting days is to compare the severity of an injury or illness (more days means more severe). For that purpose, it doesn’t matter if the day count crossed a calendar year.

For example, if an injury that occurred in December involved 97 days of restriction, the fact that those days continued into the next calendar year does not matter since the number simply indicates the severity of the condition.

Count all calendar days

Employers must count all calendar days that the employee would have been unable to work, or should have performed only restricted work, regardless of scheduled working days. That includes weekends, holidays, vacation days, and other non-working time. Employees work different schedules and some businesses remain open on weekends and holidays, so OSHA requires counting calendar days for consistency. The reason, as noted, is to accurately compare the severity of conditions.

Sometimes an employee gets injured on a Friday, or just before a holiday or planned vacation, but returns the next scheduled working day. Does the employer need to count days away or restriction? OSHA clarified that employers only need to count those days if they receive information that the employee should not have worked, or should have performed only restricted work, during those non-working days.

If a doctor tells an employee to “take it easy” until the next scheduled working day, the employer should request clarification. For example, if the employee would have been restricted from performing one or more routine job functions or from working a full shift, that would count as restricted work (even if the employee wasn’t scheduled to work). For related information, see our article, Restrictions must affect routine functions to count as restricted work.

OSHA’s regulation at 1904.7(b)(4)(vii) also states, “If you are unable to obtain this additional information from the physician or other licensed health care professional who recommended the restriction, record the injury or illness as a case involving restricted work.” Note that an incident can involve days away or restrictions even if the employee did not get medical treatment beyond first aid.

Key to remember: When an employee needs restrictions or time off, employers might not know how long the condition will last, but they must enter an estimated day count on the 300 Log until the exact day count is known.

What Is OSHA 1910.38?

OSHA 1910.38 requires employers to develop and maintain an EAP whenever another OSHA standard requires it. The EAP must be:

• Written and accessible (unless the employer has 10 or fewer employees, in which case it must be communicated orally), and
• Reviewed with employees when the plan is created, changed, or when an employee’s responsibilities under the plan change.

The plan must include contact information for employees who can explain the plan, plus procedures for:

• Reporting a fire or other emergency,
• Emergency evacuation, including exit route assignments,
• Critical operations,
• Accounting for all employees after evacuation, and
• Rescue and medical duties.

What exactly are “Other Emergencies?”

OSHA’s use of the term “other emergencies” in 29 CFR 1910.38 is intentionally broad. This flexibility reflects the evolving nature of workplace threats, many of which go beyond traditional hazards like fires or chemical spills. According to OSHA guidance, “other emergencies” may include:

• Explosions
• Severe weather events (tornadoes, hurricanes, floods)
• Chemical spills or leaks
• Terrorist or bomb threats
• Workplace violence •Medical emergencies
• Active shooter situations
• Radiological or biological hazards
• Cybersecurity breaches
• Infrastructure failures (water main breaks, power outages)
• Mental health crises

How can an organization tailor EAPs to their risk environment?

A one-size-fits-all approach rarely works because every workplace faces different threats based on its industry, location, workforce, and other factors. The ability to customize the plan ensures that employees know exactly what to do when the unexpected happens. Here are some examples:

•Chemical manufacturing facility: Beyond fire and evacuation procedures, these facility EAPs may include detailed spill containment protocols, decontamination steps, and coordination with hazardous materials (HAZMAT) teams. Plans should also address chemical exposure first aid, ventilation shutdown procedures, and emergency notification systems for nearby communities.

Data centers: These environments rely on uninterrupted operations, so Emergency Action Plans (EAPs) may also cover flooding scenarios, electrical hazards, and Heating, Ventilation, and Air Conditioning (HVAC) failures that could lead to overheating. Contingency measures might include backup power systems, server shutdown protocols, and communication plans for Information Technology (IT) teams to minimize downtime and data loss.

Tornado and severe weather prone regions: In addition to standard evacuation routes, workplaces should implement shelter-in-place protocols for severe weather. This includes designating safe interior rooms, stocking emergency supplies, and establishing communication plans for remote or traveling employees to ensure continuity of operations during and after the event.

Schools and hospitals: These facilities face unique challenges due to their public access and vulnerable populations. EAPs should prioritize active shooter response, mental health crisis intervention, and lock-down procedures. They should also include evacuation plans for individuals with mobility limitations, family reunification strategies, and coordination with local law enforcement and emergency services.

OSHA encourages employers to conduct risk assessments, engage in scenario-based training, and coordinate with local emergency services to ensure their plans are both comprehensive and actionable.

While OSHA sets the minimum requirements, many organizations choose to go further. Enhanced plans may include:

• Annual drills and refresher training,
• Coordination with local emergency services,
• Mental health support following traumatic events, and
• Business continuity planning.

Key to remember: Emergencies come in many forms, so your response plans should too. Effective preparedness is about being ready for any threat, from fires to severe weather, or chemical spills to cyberattacks. Take action now to review your risks, update your EAP, and prepare your team to face the unexpected with confidence.

CRA first cut its teeth on the Ergonomics rule

On November 14, 2000, OSHA published the Ergonomics Program final rule in the Federal Register. OSHA claimed that nearly 600,000 musculoskeletal disorders (MSDs) with days away from work were reported each year by general industry employers. The agency warned that exposure to ergonomic risk factors leads to MSDs at work.

The rule was said to “address the significant risk of employee exposure to ergonomics risk factors … in general industry.” However, after OSHA issued the rule, it met with Congressional opposition. Four months later, the rule was invalidated under the CRA. A joint resolution disapproving the Ergonomics rule was enacted in March 2001.

In recent years OSHA told the Department of Labor Office of Inspector General that it has been limited in its ability to target MSDs due to the 2001 CRA denial.

Workings of the CRA

Under the CRA, if Congress enacts a joint resolution of disapproval within 60 days after a rule is submitted, the rule must not take effect (or shall not continue in effect). For a rule to be invalidated, the President must sign the joint resolution, or, if vetoed by the President, Congress must override that veto.

Importantly, the Act states, “A new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution.”

Latest court case

Congress has since issued other CRA disapproval resolutions. The one tied to the recent court case impacts a 2016 Federal Communications Commission (FCC) final rule that amended data breach reporting obligations. This disapproval was signed into law in April 2017.

The trouble started when FCC published a rule in 2024 to again revise its data breach reporting requirements. Petitioners sought judicial review of that rule, contending, among other things, it violates the CRA because it is “substantially the same” as the 2016 amendments.

Court majority finding

Now, in a two-to-one decision, the U.S. Court of Appeals for the Sixth Circuit denies the petitions for review in case numbers 24-3133, 24-3206, and 24-3252. The judges emphasize that Congress disapproved the entire 2016 rule submitted by the FCC. Therefore, the two rules must be wholly compared, not just their components, the court reasons. If Congress intended to prohibit FCC from issuing a new rule that was substantially the same as any part of a prior rule, it could have said so, argues the opinion.

The court used the Oxford English Dictionary to define “substantially” and declares that the two rules are not substantially the same. According to the Sixth Circuit, the 2024 rule:

• Is a “mere subset of the broader compendium of privacy rules” from 2016,
• Extends reporting requirements to telecommunications relay services providers,
• Has materially less prescriptive language regarding what goes in a customer notice, and
• Defines “breach” differently and includes an exception.

Therefore, the court concludes that FCC’s issuance of the 2024 rule did not violate the CRA. The petitions for review are denied by the court majority.

Court minority finding

The minority argues that:

• The majority did not focus on the similarities of the two rules, and the differences were minor;
• The two rules adopted “nearly identical regimes for reporting breaches”;
• By disapproving the whole 2016 rule, Congress disapproved each of its parts; and
• The two rules are substantially the same and, therefore, the CRA blocks the new rule.

Implications

The case gives OSHA a path to publish a narrow or different Ergonomics rule. For example, the agency could focus a rule on:

• Ergonomics for a particular high-hazard industry(ies);
• A particular MSD (like back injuries) or risk factor (like lifting); and/or
• Certain ergonomics program elements, e.g., hazard assessment and control measures OR employee training and reporting.

Ultimately, a new rule could enable OSHA to tackle work-related MSDs, which the agency claims “are among the most frequently reported causes of lost or restricted work time.”

The petitioners may seek to have the "full" Sixth Circuit review the case, given the court split and the broad implications of the case. Instead of the three-judge panel, all active judges on the Sixth Circuit would hear the case, if a rare en banc review is granted. Later, the case could head for the Supreme Court. Yet, the high court could decide not to take it, and the appeals court decision stands. For now, the new interpretation marks a breakthrough, handing agencies a roadmap to maneuver through CRA barriers.

Key to remember

OSHA’s Ergonomics Program rule was struck down by the CRA in 2001, but a new court opinion clears the way for the rulemaking to return.