EHS Monthly Round-Up - July 2024

Compliance considerations

Backup generators help keep businesses running, but they also impact the environment. Companies must follow air quality regulations to reduce pollution and operate safely.

Air permits

•State agencies usually oversee air permits, but The U.S. Environmental Protection Agency (EPA) has granted many county and city agencies the authority to issue them. For major permits such as New Source Review (NSR) and Title V, federal regulations apply, but state or local governments may still manage the process.

•In some areas, businesses can apply for a general permit or permit-by-rule for emergency generators. These permits are often easier to obtain and take less time to process. Checking air permitting regulations will help determine if this option is available.

•Businesses should find out if they need a pre-construction or construction air permit before setting up an emergency generator. These permits are based on the proposed equipment’s potential to emit (PTE) of criteria pollutants such as NOx, SO2, CO, and CO2 and hazardous air pollutants (HAPs) such as formaldehyde and acrolein, which are emitted during the combustion of fuel. The type(s) of fuel used in the generator, such as diesel, natural gas, gasoline, or propane, will affect the calculated PTE. Read more about construction permits in this ezExplanation: NSR Permits.

(Note: many state and local permitting agencies allow for the use of 500 hours for calculating PTE from an emergency engine, as per EPA’s 2011 Fox Memo, but some agencies still require using 8,760 hours and only accept 500 hours as an enforceable limit defined in a permit.)

•Federal law sets a limit on emergency generators, allowing less than 100 hours of non-emergency use per year. This includes maintenance and testing. Some permits may also restrict the times of day when the generator can be used for non-emergency purposes.

•The permit may require businesses to use the generator according to the manufacturer’s specifications. This is especially important if the business used manufacturer guarantees to calculate PTE.

•Businesses must track fuel use and operating hours to stay within the limits used in emissions calculations. They can do this using fuel records, fuel measuring devices, and hour meters that log the generator’s usage time.

•After getting a construction permit, a facility may need to apply for an operating permit within a year of the generator beginning operation. Some state and local agencies have stricter rules and deadlines. Check out J. J. Keller’s ezExplanation for Operating Permits: Clean Air Act: Operating Permits

EPA emission standards

The EPA enforces strict emissions regulations for stationary engines. Businesses must ensure their generators meet the New Source Performance Standards (NSPS) for compression ignition (40 CFR 60 Subpart IIII) and spark ignition internal combustion engines (ICE) (40 CFR 60 Subpart JJJJ), which can be found here. Additionally, the National Emission Standards for Hazardous Air Pollutants (NESHAP) apply to reciprocating internal combustion engines (RICE). 40 CFR 63 Subpart ZZZZ can be found here.

These rules, depending on the specific type of generator engine, will be required even if a permit is not necessary.

Other Regulations

Keep in mind that using an emergency generator may also involve other factors depending on the type and amount of fuel stored:

•Aboveground Storage Tank (AST) Requirements

•Spill Prevention Control and Countermeasure (SPCC) Plans

•EPCRA Tier II Reporting

Key to remember: When installing an emergency generator, companies must navigate complex air quality regulations to ensure compliance. By selecting the right fuel type and securing necessary permits, businesses can maintain reliable power while minimizing environmental impact.

Hazardous materials

The term hazardous material is defined by the Department of Transportation. It refers to any substance or material that poses an unreasonable risk to health, safety, and property during transportation. Hazardous materials include hazardous substances, hazardous wastes, marine pollutants, and elevated-temperature materials. Essentially, if it’s dangerous and transported, it’s considered a hazardous material.

Hazardous waste

On the other hand, hazardous waste is defined by the Environmental Protection Agency. It refers to contaminated chemicals or by-products that no longer serve their purpose and need to be disposed of. Hazardous wastes are either listed or exhibit characteristics like ignitability, corrosivity, toxicity, or reactivity. It’s essentially waste that poses a danger to health or the environment and requires special handling and disposal.

To put it simply, hazardous material is a broad term that includes various dangerous substances during transportation, while hazardous waste specifically refers to dangerous by-products that need disposal. Understanding these terms is crucial for compliance with environmental and safety regulations.

If you ever find yourself unsure, remember that hazardous materials are about transportation risks, and hazardous wastes are about disposal risks.

What’s required?

Facilities submit annual compliance certifications to the Title V permitting authority, which is usually a state or local regulatory agency (40 CFR 70.6). An EPA Regional Office serves as the permitting authority (71.6) for federally issued permits.

Title V tip:Check the state or local regulations for Title V compliance certification rules. They may require more frequent submissions and additional information.

At a minimum, the annual compliance certification covers two major areas for every permit term or condition:

• The compliance methods, and
• The compliance status.

Let’s take a closer look at each element.

How do I submit a compliance certification?

Your facility’s Title V permit provides instructions for how to submit the annual compliance certification, including the required forms and methods (via mail or electronic submission). You can also confirm requirements with your permitting authority. Generally, federally permitted facilities use the Annual Compliance Certification (EPA Form 5900-04).

Title V tip: Electronic submissions may be an option through the Compliance and Emissions Data Reporting Interface (CEDRI) on EPA’s Central Data Exchange. Check with your permitting authority to determine whether you may submit the annual compliance certification electronically via CEDRI.

Annual compliance certification is vital to maintaining your Title V permit. Keep in mind: comply, certify, and repeat.

Key to remember: Facilities with a Title V operating permit must certify compliance with the requirements at least annually.

What does the standard require?

The OSHA First Aid standard (29 CFR 1910.151) requires trained first aid providers at all workplaces of any size if there is no “infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees.”

In addition to first aid requirements, several OSHA standards also require training in cardiopulmonary resuscitation (CPR) because sudden cardiac arrest from asphyxiation, electrocution, or exertion may occur. These standards include permit-required confined spaces; logging; diving; and electrical power generation, transmission, and distribution.

First aid trained or first responder?

OSHA requires prompt first aid treatment for injured employees, either by providing for the availability of a trained first aid provider at the worksite, or by ensuring that emergency services are within reasonable proximity of the worksite. Whether the first aid provider is a first responder or is first aid trained is up to you and your risk assessment.

Employees considered first aid trained can provide initial treatment to an injured person until more qualified personnel arrive. First aid trained individuals can triage injuries, control the scene to keep others safe, and call for emergency services when needed. Not all first aid trained employees will feel comfortable performing CPR, using an automated external defibrillator (AED), or splinting a broken bone, however.

First responders, though similar in their role, typically have a higher degree of training than first aid trained individuals. Generally speaking, first responders are those that beat the ambulance to the scene such as firefighters or police officers. These responders can perform rescue services or escalate emergency care as needed, such as performing cardiopulmonary resuscitation (CPR) or controlling severe bleeding.

Who is more vital for handling an emergency at your facility? Both! First aid trained employees have process and facility training that first responders may not. For example, they may be more familiar with chemicals on site or process operations. Therefore, they can navigate facilities to reach injured employees quicker to begin initial treatment. First responders, on the other hand, will have a higher level of training for first aid treatment of more complicated injuries.

What’s considered “near proximity”?

OSHA clarifies in a letter of interpretation (LOI) from March 23, 2007, that, “While the first aid standards do not prescribe a number of minutes, OSHA has long interpreted the term ’near proximity’ to mean that emergency care must be available within no more than 3-4 minutes from the workplace. Medical literature establishes that, for serious injuries such as those involving stopped breathing, cardiac arrest, or uncontrolled bleeding, first aid treatment must be provided within the first few minutes to avoid permanent medical impairment or death. Accordingly, in workplaces where serious accidents such as those involving falls, suffocation, electrocution, or amputation are possible, emergency medical services must be available within 3-4 minutes, if there is no employee on the site who is trained to render first aid.”

Regarding work areas, such as offices, where the possibility of such serious work-related injuries is less likely, a longer response time of up to 15 minutes may be reasonable. OSHA gives employers discretion in determining higher risk areas that may need sooner response times.

Employers choosing to rely on assistance from outside emergency responders as an alternative to providing trained responders must ascertain that emergency medical assistance will be promptly available when an injury occurs.

Training requirements

OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as the American Heart Association or the American Red Cross is recommended. Successful completion of any first aid training program should include instructor observation of acquired hands-on skills and written performance assessments.

Keys to remember

OSHA 1910.151 requires employers to ensure prompt first aid treatment for injured employees, either by providing for the availability of a trained first aid provider at the worksite, or by ensuring that emergency services are within reasonable proximity of the worksite. Employers should consider the workplace, hazards, workforce, and location when determining whether to have first aid trained employees or first responders for medical aid.

6 frequently asked questions

1. What should CDL/CLP drivers and employers do to get ready for these changes?

• Monitor the SDLA: Drivers and employers should check their SDLA’s transition date and procedures. All SDLAs must switch to the new system on or before June 22nd.

The FMCSA link below displays the states that have transitioned so far:

National Registry

• Follow the current process until transition: CDL/CLP drivers must keep submitting copies of each medical certificate until their SDLA tells them to stop.
• Prepare for the transition: Update internal processes and train staff in the new procedures. If more than one licensing state is involved, there may be more than one process to update driver qualification (DQ) files until all SDLAs transition.

2. What should be done after the transition date or by June 23,2025?

• Carriers: Must place motor vehicle records (MVRs) in the driver qualification (DQ) file within the required timeframe (to be determined). They no longer need to note that the certified medical examiner (CME) was on the Registry.
• CDL/CLP drivers: Must continue to self-certify their driving tier (interstate or intrastate) and whether they need to be medically certified (Excepted/Non-excepted) when they apply for a new, renewed, or upgraded CDL/CLP.
• Carriers and/or drivers: Schedule exams well before the expiration date. Enforcement must go by what is in the CDL Information System (CDLIS). If a CDL driver does not have the medical card that was just issued, the system may show their certification as expired if there is any delay in transmission and the old expiration date has passed.

3. Will clinics automatically issue medical cards to CDL/CLP drivers? What if they don’t?

On and after June 23,2025, examiners don’t have to issue CDL/CLP drivers’ medical cards unless they ask for one. It is not known if every clinic will issue medical certificates.

There is a potential 2 to 4-day gap for the information to show on the MVR.

• Examiners must enter the exam results by midnight of the day after the exam.
• The data transfer from the registry to the SDLA takes about two days.

Given the potential gap in proof of medical certification, two best practices to consider:

1. To minimize roadside inspection concerns, carriers should direct CDL/CLP drivers to ask for a medical card to carry until the new medical certification information is on their MVR.
2. The driver should give a medical certificate copy to the carrier to show they have passed the exam.

4. How long will carriers have to place an updated MVR in the DQ file?

Currently, carriers have 15 days after each exam to place a CDL MVR in the DQ file. On and after June 23rd, this time may be shorter if FMCSA changes the rule. By June 23, 2025, the MVR should reflect the current information in 2-4 days after the exam.

5. Why are procedures changing?

FMCSA published a rulemaking in 2015 that requires SDLAs to connect to NRCME, but the initiative was delayed more than once. The connection simplifies the CDL medical certification documentation process and accounts for every medical examination, even disqualifications.

6. Does this rule impact non-CDL drivers?

No. Drivers who hold non-CDL licenses will still receive a medical certificate which should not be submitted to their SDLA.

Key to remember: Carriers and drivers must understand their responsibilities in this critical transition to avoid CDL driver medical qualification issues.

What qualifies as MOT

To use the MOT exception, the hazardous materials you transport must meet specific criteria outlined in the regulations. A "material of trade" refers to hazardous materials that are transported by a private motor carrier in direct support of its primary business activities. These materials are not offered for sale or distribution but are instead used by the operator or business for operational purposes.

According to the DOT, a hazardous material qualifies as a MOT if it is:

• Used to protect the health or safety of the driver or passengers, such as insect repellents, first aid chemicals, or breathing apparatus.
• Necessary for the maintenance of the vehicle or its equipment, including items like fuel, lubricants, or spare batteries.
• Directly related to the operator’s business activities, such as tools and supplies used in construction, landscaping, pest control, or similar trades.

What you won't have to do

When these conditions are met, the MOT exception allows for relief from many of the requirements listed in the hazardous materials regulations. Specifically, materials transported under this exception are not subject to the following requirements:

• Hazmat shipping papers
• Emergency response information
• Vehicle placarding
• Formal hazmat training

This exception is especially valuable for small businesses and field crews, such as those in the construction industry, who frequently need to transport smaller quantities of hazmat like adhesives, paints, solvents, fuels, and compressed gases to job sites. By using the MOT exception, these businesses can operate more efficiently while still maintaining safety and compliance.

Quantity and packaging limits apply

The MOT exception does have strict limits on the type and amount of hazmat that can be transported, which includes:

• Class 3, 8, 9 and Division 4.1, 5.1, 5.2, or 6.1 materials:
  • 1 lb. or 1 pint for Packing Group I;
  • 66 lbs. or 8 gallons per container for Packing Group II or III; and
  • 400 gallons of a diluted mixture, not exceeding 2% concentration for Class 9.

• Division 2.1 or 2.2 gases: Cylinders not exceeding 220 lbs.
• Division 4.3 materials: Limited to 1 ounce per container for Packing Group II or III.

When transporting multiple MOT together, the total weight of all MOT cannot exceed 440 pounds per vehicle. In addition, all materials must be properly marked, labeled, and secured in the vehicle.

Key to remember: The MOT exception provides a practical and efficient way for construction companies to transport smaller quantities of hazardous materials without the full burden of hazmat regulations.

How would they help?

The following is a summary of how the proposed changes, if finalized, would ease burdens on commercial drivers and motor carriers:

ELD manuals: Drivers would no longer need to carry a user manual (either paper or electronic) for their electronic logging device (ELD). This violation alone was cited over 3,660 times last year. Other ELD-related documents would still be required, however, such as malfunction and transfer instructions and blank logs.

Railroad crossings: Bus drivers and those hauling certain hazardous materials would no longer need to stop before crossing a railroad track equipped with an active warning device (i.e., lights or gates), as long as the device is not activated.

Accident recording/reporting: Motor carriers would no longer need to record information about accidents where the only medical treatment that occurred involved imaging (such as x-rays or CT scans) or a prescription but no treatment for diagnosed injuries or other medical interventions directly related to the accident.

Inspections

• Motor carriers would only need to complete and return roadside inspection reports to the issuing state agency if that agency requests them (though the forms must still be retained for 12 months). Currently, 49 CFR 396.9 requires that all such reports be returned within 15 days.
• Though already allowed under 390.32, the rules would explicitly allow drivers and motor carriers to use electronic drivers’ vehicle inspection reports (DVIRs).

CDLs

• Commercial driver’s license (CDL) holders would no longer need to self-report motor vehicle violations to their state licensing agency, as currently required under 383.31.
• Dual-status military technicians, regardless of whether they’re members of either the Reserves or the National Guard, would qualify for the military exemption from needing a CDL, which also means being exempt from entry-level driver training and drug/alcohol testing.

Parts and accessories

• Drivers would no longer be required to carry spare fuses. The FMCSA says today’s vehicles don’t commonly suffer from blown fuses.
• Motor carriers would no longer need to ensure that their vehicles’ rear-impact guards have a permanent certification marking from the manufacturer.
• Tractors would no longer need a working rear license-plate lamp while pulling a trailer.
• It would no longer be a violation to use fuel tanks that can be filled beyond 95 percent of their capacity. Modern liquid-fuel tanks have vented caps that can safely accommodate a 100-percent fill, the FMCSA says.
• Drivers and motor carriers would no longer need to worry about being cited if their tire sidewalls are not marked with a maximum load rating. It’s up to tire manufacturers to determine if an when such markings are required.
• Drivers would be allowed to use small gravity- or siphon-fed auxiliary fuel pumps mounted on the trailer, as long as their tank capacity is less than 5 gallons and they’re not used for operating the vehicle or while the vehicle is moving. This would be a new exception to the current prohibition in 393.65(d).
• It would no longer be a violation to operate portable conveyors used in the aggregate industry without having brakes acting on all wheels, as long as the conveyor was manufactured before 2010 and the towing vehicle is large enough.

Other changes

The FMCSA issued a few other final or proposed changes that will have limited impact:

• Liquid-burning flares will no longer be an option. Drivers will need to use solid-fuel flares or reflective triangles to warn other motorists of a stopped vehicle.
• The agency plans to remove the requirement that motor carriers retrofit pre-1994 trailers with reflective tape or reflectors, saying the requirement is no longer necessary given the passage of time.
• The FMCSA intends to remove an obsolete grandfathering provision related to an old vision waiver study program.
• The agency will remove all references to “water carriers” in its regulations, since the FMCSA does not regulate such carriers. The agency says the term was carried over from when its predecessor agencies regulated water carriers.
• The regulations no longer say that motor carriers can be fined for violating Part 40 (the DOT drug/alcohol testing rules) since the FMCSA only has authority to issue fines for its own rules under Part 382.
• Some old routing regulations in Part 356 have been eliminated. The FMCSA says it’s not authorized to impose routing limitations when granting operating authority to U.S.-domiciled carriers, making the regulations both “unlawful and obsolete.”

Take action

Though you can’t take advantage of the changes until they’re finalized (probably later this year), you can help sway whether the changes actually take place. You can go online to submit comments about any of the FMCSA’s active proposals, at www.regulations.gov. Just look for the latest dockets from the FMCSA.

Key to remember: The FMCSA has issued a wide variety of proposed rule changes that could save time and money for both motor carriers and drivers.

Two-part assessment

The policy advises officers to begin all roadside inspections in English. If it seems the driver may not understand the officer’s initial instructions, the officer is directed to conduct a two-part assessment to evaluate the driver’s compliance with the English language standard.

The first step is a driver interview, though details of the interview process were redacted from the public version of the policy. The policy says drivers should not use tools to facilitate communication during the interview, such as interpreters or smart-phone applications.

The policy directs officers to cite drivers for a violation if they cannot pass the interview portion of the assessment.

Step two in the assessment is evaluating whether the driver can recognize common highway traffic signs. The policy contains images of signs officers can use for this part of the test, but those too are redacted from the public version of the policy.

‘Out of service’ as of June 25

If a driver fails the test, the policy says the officer should:

1. Cite the driver for a violation of 391.11(b)(2);
2. Document evidence to support the violation, including the driver’s responses or lack thereof;
3. Beginning June 25, place the driver out of service (June 25 is when the violation will be added to the North American Standard Out-of-Service Criteria, as previously announced by the Commercial Vehicle Safety Alliance); and
4. When warranted, initiate an action to disqualify the driver from operating commercial motor vehicles in interstate commerce.

Drivers who are placed out of service won’t be allowed to drive until they can meet the English language requirements.

The policy applies to all federal enforcement personnel who perform inspections on drivers engaged in interstate commerce. Its effect on state-level enforcement remains unclear for now.

According to the policy, drivers in a commercial zone along the U.S.-Mexico border may be cited but should not be placed out of service.

The regulation

The Federal Motor Carrier Safety Regulations state that commercial drivers must be able to “read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”

The new policy replaces a 2016 policy that ordered inspectors not to place drivers out of service for violating the language requirement.

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!

Improper pool construction

In a recent case, the Iowa Supreme Court ruled that an employer violated the state’s drug testing law because it did not properly create a drug-testing pool.

Few states regulate drug testing as strictly as Iowa. Employers testing in the state must follow the state's law unless they are required to follow federal drug and alcohol testing regulations that cover employees doing safety-sensitive work, such as certain truck drivers.

For tests conducted under the state’s comprehensive drug testing law, employers must use one of three methods to create an employee testing pool for an unannounced drug test.

One method uses a pool comprised of the entire population of employees at a work site, except for those:

• Not subject to testing because of a collective bargaining agreement;
• Who are not scheduled to be at work at the time the testing is conducted because of their status; or
• Who have been excused from work pursuant to the employer’s work policy before the testing is announced to employees.

Testing troubles

For the company’s random test, a list of all active employees was used. From this list, a computer-based random generator produced a testing list of 15 employees and eight alternates. If an employee selected for the test was not at work on the day the test was given, an alternate was selected.

One of the alternates subject to testing provided a urine sample that was outside of the acceptable temperature range. The employee was directed to provide another sample, but the sample wasn’t large enough for testing.

The employee waited at the worksite for a time and then told the company’s human resources director he was leaving to take care of a sick child. He was warned that he would be fired if he left. He left the area and was later fired.

The employee filed a lawsuit claiming that the employer’s testing pool did not meet state requirements.

Strict state standards

The employer argued that because no employees who were not scheduled to work could have been tested, it substantially complied with the state law and the pool met requirements.

The court ruled, however, that the company’s testing pool didn’t meet the law's standards. The law places limits on how the testing pool can be constructed, and to substantially comply with the law the company would have had to make an effort to properly create the testing pool.

It fell short because its testing pool consisted of all active employees in the company, and didn’t exclude employees who were not scheduled to be at work when the test was conducted or who had been excused from work under the employer’s work policy.

Compliance with the law would have required the employer to compile a list of employees who were scheduled to work on the planned testing day. That list could have been the testing pool, and names could have been randomly selected from that list.

Because the company didn’t substantially comply with the law and make reasonable efforts to ensure that the pool was constructed properly, the court found in favor of the employee.

State laws vary

Most states don’t have drug testing laws that are as detailed as Iowa’s, and some states don’t have any drug testing laws at all. In those states, employers may determine how the selection pool is created. Having this outlined in a workplace policy allows for consistency and can help avoid the claim that a test was conducted in a discriminatory manner.

Key to remember: In all cases, employers should pay attention to the details of state regulations that impact employee drug testing. In some states, such as Iowa, drug testing must be very carefully conducted to avoid violating state law.

Scott Hampe vs. Charles Gabus Motors, Iowa Supreme Court, No. 22-1599, April 11, 2025.

What are prebiotic sodas?

Prebiotic sodas are carbonated beverages that contain dietary fibers called prebiotics. Prebiotics help support the good bacteria in the gut.

Fiber isn’t digested but supports digestion and helps you feel full. Most Americans don’t eat enough fiber, falling short of the recommended 28 - 35 grams of fiber each day.

Since 2016, the Food and Drug Administration (FDA) has expanded its definition of dietary fiber to include non-digestive carbohydrates, such as inulin and acacia. These fibers come from plants such as chicory root and the acacia tree. Prebiotic sodas often contain these plant-based fibers.

What problems can prebiotic sodas cause?

Drinking prebiotic soda can have side effects, as inulin can be hard to digest. If you’re not used to consuming a lot of fiber, it can cause bloating, diarrhea, and gas pains.

In addition, prebiotic sodas often contain artificial ingredients as well as sugar, which has been linked to heart disease and diabetes.

Because of these drawbacks, a better choice for increasing fiber intake is a diet that includes plenty of fruits, vegetables, and whole grains. These foods are natural sources of fiber.

When you’re thirsty, and especially if you’re working in hot weather, water is a great choice. The Occupational Safety and Health Administration advises employers to provide cool water to workers in outdoor environments. Employees should be encouraged to drink at least one 8-ounce cup every 20 minutes while working in the heat.

Key to remember: There’s nothing wrong with swapping out a prebiotic soda for a regular one when you’re looking for a treat. If you’re focusing on getting more prebiotic fiber into your diet, however, it’s found naturally in bananas, asparagus, almonds, beans, peas, garlic, and onions. When you’re focused on calorie-free thirst quenching, water still rises to the top.

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.

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.

Paid time off

In addition to not requiring bonus pay for night or weekend work, the FLSA does not require employers to give employees paid time off, such as vacation, sick leave, or general paid time off (PTO). If an employee works while on PTO, the FLSA does not require employers to pay extra for that time.

Many states, however, have laws that entitle eligible employees to paid time off for a variety of qualifying reasons. Employers should pay close attention to the details of these leave laws, as they may restrict employees from working while on leave.

State laws

Concerning time off, some states have “day of rest” or similar laws requiring employers to give employees at least one day off in a seven-day workweek.

Certain states also require premium pay for weekend work, even if the total hours worked do not exceed 40 in a workweek. This premium pay, often at a rate higher than standard overtime, varies by state.

Under California law, for example, employers must pay overtime for any work beyond eight hours in one workday and any work beyond 40 hours in one workweek. They must also pay overtime for the first eight hours worked on the seventh day of work in any one workweek. Employers must pay double time for any work beyond 12 hours in one day and any work above eight hours on any seventh day of a work week.

Key to remember: Employers don’t have to pay employees extra for working weekends or night shifts under federal law, but state laws might require it.

#1 Start here

First, OSHA requires that all operators must be trained prior to being allowed to operate forklifts. And the same thing goes for pallet trucks, order pickers, and stand-up units…. Any powered type of material handling equipment requires training.

But what does training entail? Well, the OSHA regulations are very specific. All operators must receive a combination of training. Training must consist of formal training, which is a lecture, discussion, interactive computer learning, video tape, written material, and so on.

They must also receive practical training, which means demonstrations performed by the trainer and practical exercises performed by the trainee.

And the third component is that operators must receive a performance evaluation. So, they must operate the equipment and be observed and evaluated before being considered trained per the OSHA standard.

Usually, you’ll introduce the concepts during the classroom portion of training, the more informational aspects, such as the OSHA requirements. Then you’ll use the practical part of training to familiarize trainees with controls, talk about load handling, and so on. With the practical part, it’s usually best to ramp up the training, meaning start with simple skills and then build on those.

#2 Train on these topics

Aside from requirements for how to do the training, OSHA gives us a detailed list of topics to cover during the training.

The main categories are truck-related and workplace-related topics. And remember that OSHA does require you to include information on OSHA’s forklift standard as part of the training program. This requirement can be easy to overlook, but a good way to approach it is in the classroom portion of the program.

Keep in mind that if a topic doesn’t apply to your trucks or workplace, you don’t have to train on it. For example, if you don’t have any ramps or hazardous (classified) locations in your facility, your forklift operators don’t need training on these topics.

Truck-related topics include the following:

• Operation instruction, warnings
• Differences between forklift and automobile
• Controls, instrumentation
• Engine, motor operation
• Steering
• Visibility, restrictions
• Fork, attachment operation
• Capacity
• Stability
• Inspection, maintenance
• Refueling, recharging
• Operating limitations
• Operator’s manual instructions, precautions

Workplace-related topics are examples like these:

• Surfaces
• Load composition
• Load handling
• Pedestrians
• Narrow, restricted areas
• Hazardous (classified) locations
• Ramps
• Poor ventilation
• Other hazards

#3 Determine success

The trainees must successfully complete the formal and practical instruction, but how you determine success is up to you. For the classroom portion, you could give a written or oral test or otherwise evaluate the trainees’ knowledge. For the practical training, the trainee must be able to safely perform all the operations used on the job.

#4 End here

An evaluation of the operator’s performance in the workplace must be conducted at the time of initial training. And an evaluation is required to determine the effectiveness of any refresher training.

Also, you must conduct an evaluation at least every three years. This means that at least once every three years every operator must be observed while they operate in the workplace under actual workplace conditions. During the evaluation, the operator must also be able to answer pertinent questions to demonstrate they have the knowledge to operate the forklift safely.

A key point to note here, this evaluation must be more than just a written or verbal test. The employer must observe the operator in action performing all typical tasks related to running the forklift. And, going back to where we started, the evaluation must be conducted by someone who has the knowledge, training, and experience to evaluate the truck operator’s competence.

Document the evaluation — this means placing a record in your training file that includes the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training or evaluation.

Action item

This may be a good time for you to review your options for training forklift operators to ensure they’re meeting these guidelines. And, it’s always a great idea to have all your training procedures in written format for consistency.

Key to remember

Training forklift operators is an OSHA requirement. Follow this step-by-step guide and you can do it in-house.

No driver’s license but must be 18 years old

Since forklifts are not operated on public roads, the operator does not need a driver’s license. In fact, OSHA requires training on the differences between a forklift and a car. Someone with a driver's license might assume that forklifts handle like cars, but they do not!

A forklift operator must, however, be at least 18 years old. That’s not in the OSHA regulations, but appears in the child labor regulations. Minors under 18 years of age cannot operate (or even ride on) equipment like forklifts or scissor lifts.

Seatbelts required

Everyone knows that forklift operators must use the seatbelt if the forklift has one. That does not appear in the OSHA standard, but it’s usually a safety warning in the forklift operator manual. Since failing to wear a seat belt is a recognized hazard that could cause serious injury, OSHA uses the General Duty Clause to cite employers that don’t enforce seatbelt use.

Hearing or vision impairments

Employers occasionally hire trainees with hearing loss, vision impairment, or other physical limitations. Alternatively, an experienced forklift operator could get injured or experience similar impairments. OSHA does not establish specific requirements for vision, hearing, or other qualifications, and physical limitations are not necessarily disqualifying.

Instead, employers must evaluate the individual and determine if the person can operate safely. Trainers should work with their Human Resources team to evaluate possible accommodations under the Americans with Disabilities Act. Do not assume that a physical limitation would prevent someone from becoming a safe forklift operator. If an evaluation finds that the person cannot meet acceptable safety standards, the employer may refuse to certify the operator.

Trainers might need training

The employer determines who is qualified to deliver powered industrial truck training. The trainer must have the “knowledge, training, and experience” to train and evaluate operators. Attending a “train the trainer” class and getting a certification isn’t a bad idea, but OSHA doesn’t require any particular course or certification to be a trainer.

OSHA does, however, require that the trainer have experience using the type of equipment that trainees will operate. Since experience is required, the trainer likely received training on using that equipment. Further, if the employer purchases a new type of truck or attachment that the trainer has never used, the trainer will need experience using that equipment before training others.

For related information, see our articles on Debunking the mysteries of forklift training (Part 1) and Debunking the mysteries of forklift training (Part 2).

Even minor modifications require approval

Modifications that affect “safe operation” require the manufacturer’s written approval per 1910.178(a)(4). In OSHA’s view, that covers nearly any change, even adding a warning light or backup alarm. A Letter of Interpretation dated April 11, 1997, clarified that if the manufacturer does not respond or refuses to approve a modification, employers may instead get approval from a Qualified Registered Professional Engineer. Employers should ensure that forklift operators don’t modify equipment, like adding plywood or tarps to the cage as a sun shade. Those changes could affect safe operation and would require approval.

Key to remember: The powered industrial truck standard does not address every issue that employers might face, but employers can find answers in other regulations or guidance.

Q: When will OSHA’s proposed Heat rule become final?

A: The agency has scheduled a virtual public hearing for June 16 on its proposed Heat rule. Following the hearing, OSHA will analyze comments it received, which can take several months. Once this step is completed, OSHA will determine what’s next. This may include finalizing the rule.

Q: How does the proposed heat rule define indoor work?

A: “Indoor” is defined in the proposed rule as “an area under a ceiling or overhead covering that restricts airflow and has along its entire perimeter walls, doors, windows, dividers, or other physical barriers that restrict airflow, whether open or closed.” Examples include:

• A garage, even if the door is open;
• The interior of a warehouse, even if multiple doors are open on loading docks; and
• A shed with four walls and a ceiling, even if the windows are open.

Construction activity is considered “indoors” when performed inside a structure after the outside walls and the roof are built.

Q: Which states have their own heat regulations?

A: Several states have their own heat-related regulations. Note that they vary in the type of industries covered, whether they apply to indoor and/or outdoor workplaces, and the expectations and requirements for employers. These states are:

• California
• Colorado
• Maryland
• Minnesota
• Nevada
• Oregon
• Washington

Additionally, Arizona and OSHA Region IX have launched emphasis programs.

• Arizona — In July 2023, Arizona implemented a state emphasis program (SEP) to reduce worker exposure to heat-related hazards in indoor and outdoor workplaces. In May 2025, the state’s governor formed a heat safety task force, with the goal of developing employer guidelines on heat safety by the end of 2025.
• OSHA Region IX — This region adopted a regional emphasis program (REP) for heat illness in November 2022. It applies to indoor and outdoor worksites where potential heat-related hazards exist in Alaska, American Samoa, Arizona, California, Guam, Hawaii, Idaho, Nevada, the Northern Mariana Islands, Oregon, and Washington.

And finally, several states and territories adopted OSHA’s National Emphasis Program (NEP) for indoor and outdoor heat hazards (CPL 03-00-024). Some adopt it identically and others made changes. These include California, Connecticut, Hawaii, Massachusetts, Maryland, Maine, Michigan, New Jersey, New Mexico, Nevada, New York, Oregon, Puerto Rico, South Carolina, Virginia, the Virgin Islands, Vermont, and Washington.

Q: Can OSHA cite our warehouse for heat hazards?

A: Yes, OSHA can cite your warehouse for heat hazards. In fact, under the agency’s NEP (CPL 03-00-024), OSHA compliance officers must initiate inspections in any of the 70 listed, high-risk industries (including the warehousing and storage industry) in outdoor and indoor work settings when the National Weather Service issues a heat warning or advisory for a local area. Inspectors will review illness logs and other records, interview workers, determine if the employer has a heat illness prevention program, document ambient conditions, and identify work activities relevant to heat-related hazards.

If there’s sufficient evidence to issue a citation for heat-related hazards, a citation under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act will be issued.

Q: Does heat stress have to be reported on our OSHA Logs?

A: Heat illness cases must be recorded if they meet OSHA’s recording criteria. To be recordable, the condition must involve medical treatment beyond first aid. First aid treatments listed in 29 CFR 1904.7 include “drinking fluids for relief of heat stress.” For instance, if an employee showed heat stress symptoms and needed a break to cool down and drink fluids, this alone is not a “recordable” case for the 300 Log. However, if the employee went to the hospital for intravenous (IV) fluid replacement, that would be recordable as medical treatment. Similarly, OSHA says if the employee went unconscious or oxygen was administered, the case is required to be recorded.

A case of heat stress will also become recordable if the employee needs restrictions or days away from work.

Key to remember: In the absence of a final Heat rule at the federal level, OSHA can use the General Duty Clause to cite for heat-related hazards. On June 16, the agency will hold a virtual public hearing on its proposed Heat rule. Meanwhile, some states already have heat regulations in place.

What regulations apply?

OSHA 29 CFR 1926.21 for construction operations, says: “In job site areas where harmful plants or animals are present, employees who may be exposed shall be instructed regarding the potential hazards, and how to avoid injury, and the first aid procedures to be used in the event of injury.”

Although there’s no similar general industry regulation for outdoor settings, workers should be trained on this recognized, serious hazard, too.

Insects

OSHA has no specific elements that must be covered when training on insect-related hazards. However, you may wish to share best practices when your crew is working in areas where ticks, spiders, bees, hornets, wasps, fire ants, and other insects may be present:

• Wear long pants, socks, and long-sleeved shirts, and tuck pants into boots or socks.
• Avoid wearing bright-colored clothing.
• Avoid swatting a flying insect. Instead, gently brush it aside or wait for it to go away.
• Use insect repellents according to product instructions.
• Avoid wearing sweet-smelling colognes and deodorants.
• Avoid eating in areas where insects are gathering.
• Check skin and clothing for ticks daily and remove ticks using fine-tipped tweezers.
• Remove a stinger by scraping it. Wash the affected area with soap and water or an antiseptic towelette. Do not scratch a sting.
• Treat bites/stings by evaluating the affected area and applying cold water or ice for pain. If not allergic, over-the-counter products may relieve pain and/or prevent infection.
• Seek prompt medical attention if new, severe, or persistent symptoms are experienced after a bite/sting. These may include swelling and pain at the bite/sting site, body/muscle aches, fever, headaches, fatigue, joint pain, rash, stiff neck, and/or paralysis.

Rodents and other animals

Bites and scratches from wild animals can cause injury and spread germs, even if the wound doesn’t seem deep or serious. Have your workers:

• Avoid contact with rodents or rodent-infested areas. If this isn’t possible, wear protective gloves and wash hands regularly.
• Avoid contact with wild or stray animals.
• Wash scratches or bites with warm soapy water immediately. Bandage the wound. Seek medical attention if the wound is serious; the animal looks sick or acts unusual; or if the wound becomes red, painful, warm, or swollen.

Plants

Plants like poison ivy, poison oak, and sumac have poisonous sap in their roots, stems, leaves, and fruit. If the stems or leaves are damaged, the sap may get on the skin through direct contact with the plant or by contaminated objects such as clothing, shoes, tools, and animals. Signs of an allergic reaction include itching, redness, a burning sensation, swelling, blisterings, and/or a rash.

To combat these plants on the job, share images of poisonous plants workers may be exposed to. Also, urge your workers to:

• Wear cloth or leather gloves, long-sleeved shirts, and long pants tucked into boots.
• Apply barrier cream/lotion to uncovered skin.
• Keep rubbing alcohol accessible to remove the oily resin up to 30 minutes after exposure.
• Wash an exposed area with cold running water if a worker has possible contact with a poisonous plant. Do not use soap since it may spread the oil.
• Wash contaminated clothing, handling it as little as possible until it’s soaked.
• If a rash develops, avoid scratching the area.

Snakes

Venomous snakes in the U.S. include rattlesnakes, coral snakes, cottonmouths/water moccasins, and copperheads. Workers should understand their exposure risk, how to prevent and protect themselves from snake bites, and what to do if they’re bitten. Share images of the types of snake(s) in your area, so workers understand how to spot a venomous snake. Safety tips include:

• Watching for snakes sunning themselves on fallen trees, limbs, or pathways.
• Wearing heavy gloves when removing debris and, if possible, not placing fingers under debris when moving it.
• Wearing leather boots at least 10 inches high.
• Stepping back and allowing a snake to move away. Snakes bite only when they feel threatened or trapped.
• If bitten, allowing the bite to bleed for 15 to 30 seconds. Clean and disinfect the area. Seek medical attention.

Key to remember: Outdoor workers exposed to plants and animals should be trained in hazard recognition, how to protect themselves, and what first aid measures to use. Construction workers must have that training when harmful plants or animals are present.

Alternative glove selection for COVID-19

Here’s a summary of glove types and the protection given to help evaluate alternatives.

Butyl gloves protect against a variety of chemicals such as peroxide, highly corrosive acids, strong bases, alcohols, aldehydes, ketones, esters and nitrocompounds. Butyl gloves also resist oxidation, ozone corrosion and abrasion, and remain flexible at low temperatures. However, they do not perform well with aliphatic and aromatic hydrocarbons and halogenated solvents.

Natural (latex) rubber gloves have good elasticity and temperature resistance, and resist abrasions well. They protect against most water solutions of acids, alkalis, salts, and ketones. Latex gloves may cause allergic reactions and may not be appropriate for all employees. Hypoallergenic gloves, glove liners, and powderless gloves are possible alternatives for employees who are allergic.

Neoprene gloves protect against hydraulic fluids, gasoline, alcohols, organic acids, and alkalis. Their chemical and wear resistance are generally better than gloves of natural rubber.

Nitrile gloves are intended for jobs requiring dexterity, and they stand up even after prolonged exposure to substances that cause other gloves to deteriorate. They offer protection when working with greases, oils, acids, caustics, and alcohols but are not recommended for use with strong oxidizing agents, aromatic solvents, ketones, and acetates.