EEOC prescribes $150,000 settlement in health care sexual harassment case

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.

Tested in error

• Drivers may claim that their employer initiated a test that shouldn’t have been done, such as: Requesting a post-accident test when the criteria in 382.303 weren’t met,
• Misidentifying a driver as the subject of a random test, or
• Sending a driver for a reasonable suspicion test without grounds.

MROs are told in 49 CFR 40.151(c) that it’s not their role to determine whether the test should have occurred. A positive test result stands for anyone holding a commercial driver’s license (CDL), even if the employer made a mistake in sending them for the collection.

Drugged by someone

In some instances, the driver doesn’t contest the lab result. They just claim they unknowingly were exposed to the drug, and it’s not their fault.

Stories might include:

• Someone slipped a drug into a drink at a party,
• The driver ingested a marijuana brownie without realizing it, or
• The driver traveled in a closed car with several people smoking drugs.

Stories of passive or unknowing ingestion can’t be verified. Even if true, they don’t present a legitimate medical explanation, so the MRO can’t deem the test negative.

Was set up

Drivers may claim that the specimen isn’t theirs, or someone tampered with it at the clinic.

For example, there may be allegations made by the driver that the collector left the area or left open specimen containers where others could access them.

The regulations are clear: It’s not the MRO’s role to investigate claims that collection procedures weren’t followed by the clinic. The MRO only works with what is reflected in the chain of custody form, and all other accusations will be dismissed.

Took a second test

Some drivers take it upon themselves to take a second drug test outside of DOT to prove their innocence. For example, a driver tells the MRO that a personal physician performed a urine drug test that was sent to a lab, and it came back negative. The MRO must ignore this second test result. It isn’t evidence to sway the result.

Exposed to a cleaning product

An adulterated test result is often the result of soap, bleach, or disinfectant used to tamper with a urine specimen. A driver might claim the chemicals wound up in the urine through exposure to cleaning products (e.g., absorbed through the skin or inhaled). According to the regulations, there are no physiological means through which these substances can enter a specimen.

Key to remember: MROs won’t consider tall tales when verifying failed drug tests. They are given specific instructions by DOT: Only consider valid medical explanations — no matter how convincing the driver’s story might be.

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!

Disqualifying

Under 49 CFR §391.41(b)(4) and accompanying guidance, ICDs are disqualifying due to the risk the driver might faint when the ICD fires an electrical pulse.

Nevertheless, the FMCSA continues to accept applications for exemptions from the rule and says it will continue to weigh each application on its merits. A driver who receives an exemption would be able to operate a commercial vehicle in interstate commerce.

In a July 23 notice, the agency wrote that it “has received and carefully evaluated many ICD exemption application requests [but] thus far the agency has been unable to conclude that granting an exemption to any of the applicants would achieve [an acceptable] level of safety.”

The only exception came in 2015, when a driver was authorized to drive in interstate commerce because his ICD was disabled.

What should drivers do?

Drivers with ICDs (or any other disqualifying medical condition) may apply for an FMCSA medical exemption using the procedures outlined in Part 381, Subpart C, but they should be realistic in their expectations. The FMCSA is unlikely to grant an ICD exemption anytime soon.

Other options:

• Check with the state to see if it’s possible to be medically certified for in-state-only driving. Some states offer their own exemptions and are more lenient than FMCSA.
• Drive only in areas where medical certification is not required. Under federal standards, operating a commercial vehicle in an area with restricted access (such as a fenced lot) does not require medical certification.

What about pacemakers?

Pacemakers are similar to ICDs but only send low-energy electrical pulses to the heart, while ICDs are more powerful. Pacemakers are not disqualifying and drivers who have them may be medically certified without seeking an exemption.

Key to remember: The FMCSA is taking exemption applications from drivers with implanted defibrillators but to this date has never granted one. Employees with ICDs have limited options to become certified to drive.

Where did this company go wrong?

The company had a history of not hiring female employees — a practice not looked kindly upon by the EEOC. The waste management company also made several key errors during the hiring process, such as:

1. It assumed household gender roles by telling the female applicant to “talk to her husband” about her job possibility. That line of thinking is not only archaic; it violates Title VII by making sex-based assumptions.
2. The managers implied that creating a shower space for her would be a burden to the company wreaks of discriminatory language. It basically says hiring a female would be a problem.
3. Hiring a less-than-qualified male applicant made it implicit that she wasn’t hired because of her sex.

What should other employers do?

While it’s important to learn about a prospective employee, companies could face liability if they ask the wrong questions during an interview. Before conducting interviews, employers should have a script of safe questions. Asking the same questions of all candidates not only helps to compare them equally, it also minimizes the possibility of slipping up and saying something improper.

Interviewers can ask general questions to help determine if a candidate can perform the essential functions of a particular job, such as:

• What kind of job experience do you have?
• What aspects of your current job or previous jobs do you consider most crucial?
• Of all the work you’ve done, what have been your biggest successes?
• What would you change about your current job?
• What aspects do you like best about your current job? Least?
• What are you looking for in your next job?

Key to remember: Employers must dump off-limit topics, questions, and “trashy” comments during the interview process, or they could find themselves hauled into court.

8 steps to help smooth out the FMLA process

Employers might look at their FMLA process and see if there’s room for improvement. Ideas can include the following:

1. Walk through the process. Talk with the employee so they know what to expect and when. Have conversations and ask if the employee has any questions. It never hurts to ask, “What can we do to help?” or something to that effect along the way.
2. Consider the factors of each situation. Employees who need leave are usually in a stressful situation, even if the reason for leave is happily welcoming a new child. They often aren’t familiar with the nuances of the FMLA, so it’s new territory for them. A bit of empathy goes a long way.
3. Follow through. Provide employees with answers to any questions or glitches in the process. While employees might have 15 days to gather a certification, for example, meeting that deadline can be challenging in some situations. If it’s missed, talk to the employees so they understand why.
4. Provide gentle reminders. While it’s not technically required, if deadlines are coming up, gently remind employees.
5. Use technology to your advantage. If your system enables employees to access the process and its parts from their mobile device, all the better; if that’s how an employee would prefer to proceed, great!
6. Overcommunicate rather than under-communicate. It’s better to say more than less when it comes to explaining how the FMLA process works and what’s expected. Ask employees which method they prefer to receive information. If, for example, you prefer to make phone calls, but an employee seldom accepts phone calls, both you and the employee can be frustrated.
7. Have templates for letters and forms. Using templates makes it easier to recognize and review information or explain something to the employee. This can also help ensure you treat all similarly situated employees equivalently.
8. Document the process. Write down the FMLA process and share it with managers, at least at a high level. Managers don’t need to become FMLA experts, but they might not realize all that’s involved in the FMLA process, and things might get a little easier once they understand. Employees can benefit from such a document, as well.

Because FMLA leave is very personal, employees who have a bad leave experience might consider changing employers or sharing their experience with coworkers, making recruiting and retention more challenging.

Key to remember: Taking a few steps beyond compliance in FMLA leave management can help make the process easier for both employers and employees.

The change details are key

How much FMLA leave employees get when their schedule changes will depend on:

• Who made the change,
• Why they made the change, and
• When they made the change.

If, for example, an employee normally worked 40 hours per week, but is now moving to a 24-hour per week schedule, that change would result in the employee having 288 hours of FMLA leave, not 480 hours. The employee still gets 12 FMLA weeks, though.

The FMLA regulations say that, if the employer has made a permanent or long-term change in the employee's schedule (for reasons other than FMLA, and before the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.

Therefore, if all of the following are met, the employer could use the new, 24-hour workweek (288 hours of leave) as a basis for how much FMLA leave the employee gets:

• The employer made the change to shorten the employee’s schedule,
• The decision had nothing to do with FMLA leave, and
• The change was made before the employee needed FMLA leave.

If, however, the schedule change was because of FMLA leave, and it was made after the employee began taking FMLA leave, the employer must use the old schedule of 480 hours of FMLA leave.

Employers and employees might agree to make a schedule change, and that would be fine, as long as the employer ends up making the employee’s desired change.

If an employee has been taking FMLA leave and subsequently wants a shorter schedule, the employer may not decrease the employee’s hours of FMLA leave. The employer would need to use the old schedule.

New leave year reset

When a new 12-month leave year begins, and an employee first puts the employer on notice of the need for leave, the employer would treat it as a new leave request. At that time, one could argue that the schedule change was made before the employee asked for leave.

Key to remember: Whether employers may reduce the amount of FMLA leave employees get when they reduce their schedules will depend on who made the change, why, and when.

Tracking leave

For hourly (nonexempt) employees, employers must pay employees for any hours worked and keep track of that time. If employees work remotely, they might be required to track and report their work hours.

For salaried (exempt) employees, employers don’t have to track their work hours, but must still keep accurate records of the time spent on FMLA leave.

Blocking access

To avoid non-compliance risks with tracking leaves, employers might choose to cut employees’ work access while on extended leave. This can include not only access to the physical workplace but also access to the virtual workplace, including emails and messages. Someone from IT might need to be involved.

If employers don’t want all communications shut down, they could work with employees to identify other means of communication, such as a personal email or phone number. That way, employees can continue to share information such as their intended return date. Employers should also ensure that important messages get through.

If access is not cut off, employers need to make sure that employees know that they should not work during leave and that there could be consequences for doing so.

Policies help

To help ensure consistency, employers should have well-communicated policies on not working during leave and what employees can expect. A well-written and communicated policy can:

• Help employees feel like they are not being punished by being banned from work,
• Show that employers take FMLA leave seriously, and
• Prohibit supervisors from asking employees to work while on leave.

If an employee violates the policy and does any work during leave, employers can look at it as a policy violation and apply their applicable discipline.

Key to remember: Employers may cut off access to work during leave, but doing so requires some careful forethought.

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.

Mental health boost

Another study that looked at communication during the COVID-19 pandemic, published in the journal Nature, found that mental health was better on days when more time was spent communicating face-to-face.

This could be because in-person communication provides the opportunity to take in the nuances of body language, voice pitch, and eye gaze.

While videoconferencing also offers the opportunity to see those cues, researchers found it can be taxing because of prolonged eye contact, a focus on appearance, and larger faces due to screen size.

An impact on learning

Another drawback to socializing alone is that information isn’t processed as thoroughly as it is in face-to-face situations, Baumeister’s study found. This may make an impact on decision-making and learning in online groups.

In addition, although shy people may prefer typing their comments into a chat, some people may be more likely to say something harmful when communicating online.

Motivation, participation help

The study found two qualities that improve the impact of online communication:

• Motivation to be engaged and
• Full participation with each other.

For example, researchers found high levels of engagement in workers who were highly committed, as well as people in online psychotherapy sessions and people who were romantically involved.

While technology offers more opportunities for interaction, and can be an effective way to communicate when people are highly motivated to meet, it often lacks the benefits of being physically present with the people you’re talking to.

“Humans were shaped by evolution to be highly social,” Bushman added. “But many of the benefits of social interactions are lost or reduced when you interact with people who are not present with you.”

Key to remember: Face-to-face interactions at work support engagement and boost mental health.

What information must the written program include?

Paragraph (e) of 1910.1200 outlines written program requirements. Although the program doesn’t need to be lengthy or complicated, it must include enough detail to explain how your organization is complying with the HazCom standard. There are specific elements OSHA will look for to ensure compliance:

• A list of the hazardous chemicals known to be present in the workplace that matches the identifier on the container label and the safety data sheet (SDS).
• The designation of person(s) responsible for ensuring labeling of in-house containers and the person(s) responsible for ensuring labeling of shipped containers (if any).
• A description of any in-house labeling system(s) and any labeling alternatives used in the facility (if applicable).
• A description of HazCom training provided to employees.
• Procedures to review and update label information when necessary.
• Methods used to inform employees of the hazards of non-routine tasks, such as cleaning reactor vessels, and the hazards of unlabeled pipes in their work areas.
• An explanation of how the employer will comply on multi-employer worksites. Employers on multi-employer worksites who do not use hazardous chemicals, but whose employees are exposed to the chemicals used by other employers on the worksite, are required to have a program and train their employees on the hazards of the chemicals in the work areas.

Key to remember: If you’re covered by the HazCom standard, you may need a written program. It must include specific elements listed in 1910.1200(e).

What is WBGT?

Developed by the US military in the 1950s to prevent heat-related deaths in training camps, WBGT is a measure of the heat stress in direct sunlight. It takes into account more than just temperature, including considerations for humidity, wind speed, cloud cover, and even sun angle.

The Heat Index, on the other hand, considers only temperature and humidity for shady areas. So, if employees are working in direct sunlight, the WBGT may be the better way to monitor.

How does WBGT work?

WBGT calculates three key measurements into one equation:

• Air temperature – measured with a standard outdoor thermometer to show the actual temperature of the air. This gives a baseline for how hot the environment is without the effects of humidity, wind, or radiant heat (sunlight).
• Natural wet bulb temperature – measured using a thermometer wrapped in a wet cloth to simulate the cooling effect of evaporating sweat. Readings can be strongly influenced by wind and humidity, and because the thermometer is exposed to sunlight, it also reflects solar heat.
• Black globe temperature – measured with a thermometer inside a black globe to represent how hot human skin and clothing “feels” in direct sunlight. Readings are of radiant heat that air temperature alone wouldn’t capture.

In layman’s terms, as the water evaporates from the wet, wrapped bulb, the bulb is cooled which pushes the wet-bulb temperature down. Added air moisture (humidity) means less water evaporates and cooling is not as effective. This means the WBGT is high.

Mathematically, here’s how the measurements are used to calculate WBGT:

WBGT = (10% × Air Temp) + (70% × Wet Bulb Temp) + (20% × Black Globe Temp)

For a simplified example, if the air temperature is measured at 80°F, the relative humidity is 80%, and the globe temperature is 80°F, the WBGT would be calculated as follows:

WBGT= (0.1 × 80) + (0.7 × 80) + (0.2 × 80)

= 8 + 56 + 16

= 80°F

This result is a WBGT of 80°F which is a relatively high level of heat stress.

To put this into perspective, studies show that a WBGT of around 87.5°F is nearing the maximum temperature that a healthy worker can handle. Though the number seems palatable, this level of heat with humidity can be stifling and deadly.

OSHA’s proposed Heat Rule update

OSHA held an informal public hearing over multiple days in June and July 2025, concluding on July 2nd. A final ruling has not yet been published to the Federal Register. OSHA’s Rulemaking Process can take between 24 and 60 months to review feedback, analyze the record, and develop a final rule.

In the meantime, employers should comply with their State plan state requirements or OSHA’s National Emphasis Program (NEP) on Outdoor and Indoor Heat-Related Hazards. The federal NEP was recently revised and became effective April 10, 2026, with updates including the removal of outdated background information, reorganization of appendices information and citation guidance, and the addition of inspection triggers.

Key to remember: The weighted approach of WBGT factors in temperature, direct sunlight, humidity, wind, and cloud cover, all of which have an impact on the body’s ability to cool itself.

Submitting employees to drug tests

Can motor carriers drug test their drivers? The short answer is no. Canada does not have a federal regulation that requires drug testing for drivers. However, this does not mean that Canadian motor carriers cannot implement and enforce a drug and alcohol policy for their drivers. In fact, many carriers have developed successful policies that minimize the risk of getting in trouble with the law and ensure the safety of their drivers and the public.

For the most part, drug testing not only violates the Human Rights Code, but it is also a gross infringement on an individual’s reasonable right to protection of privacy. Motor carriers operating in Canada need to make sure they consider the human rights and privacy rights of their drivers when implementing any type of drug testing program and policy.

Motor carriers have the right to expect their drivers to arrive at work fit for duty and remain that way throughout the duration of their shift. Communicating this expectation to them is important and, at a minimum, should be communicated by implementing a ”fit-for-work” policy that makes your expectations around impairment of any kind clear.

When drug testing may be permissible

There are some circumstances in which drug testing is allowed, though they are rare and very specific.

1. Safety-sensitive positions: Universal random drug testing would be acceptable in workplaces that can be shown to be extremely dangerous and where a worker’s impairment would likely result in catastrophe. Based on this definition commercial truck drivers would be considered to be in a safety-sensitive position.

2. Reasonable suspicion of impairment: If an employee appears to be obviously impaired, drug testing may be permissible, especially if they’re involved in a collision and there is reasonable suspicion that they are under the influence of drugs.

3. As part of a rehabilitation/return-to-work program: A driver with substance abuse disorder may be subject to unannounced drug testing to be carried out as part of a rehabilitation program and return-to-work program.

Unlike in the United States, pre-employment drug testing is generally not permitted in Canada, except in limited circumstances. Each Canadian province has its own legislation regarding testing for drugs. In Alberta, the courts have been less protective of individual privacy rights and have allowed drug testing in the oil and gas sector. Most companies in Ontario and British Columbia opt not to test for drugs, adhering to human rights legislation and privacy concerns.

Policies must be clear

Motor carriers must inform their drivers about the drug and alcohol policy and unlike U.S. testing programs, are required to obtain their consent before conducting any test. By working together, motor carriers and drivers can create a safe and healthy work environment for everyone involved.

Carriers should update their policies addressing drug and alcohol use at least once per year. Carriers must pay close attention to:

• Permissible testing for the jurisdictions they operate in, including if they cross the border into the United States;
• Frequent reminders for drivers on their obligations under the policies; and
• Training for managers and supervisors on detecting impairment through physical symptoms.

Key to remember: Drug testing in Canada is legal but not regulated, so carriers must exercise caution when implementing a drug testing policy. There’s a fine line between allowable testing and human rights/employee privacy violations.

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.