Employee or independent contractor? DOL rule draws a line

What were the objections?

Examining the docket, we find several requests for withdrawal of the rule. Some of the concerns raised by commenters included:

• Misalignment with OSHA compliance dates — Commenters remarked that the rule does not align with the phased-in compliance deadlines in the OSHA Hazard Communication (HazCom) standard at 29 CFR 1910.1200(j). In fact, EPA’s compliance date precedes OSHA’s dates, making it “impossible to implement the required changes … for the 2026 reporting cycle,” asserted one commenter. This will force facilities to engage in premature self-classification, argued the commenter. “This misalignment introduces a high risk of inconsistent hazard reporting, undermining both regulatory clarity and the reliability of emergency planning data,” warned another.
• Unrealistic timeline — Commenters pointed out the fast-track schedule. “This timeline compresses the window for implementing critical updates to chemical management software systems [and] procedures [and] reconfiguring data collection processes,” explained a commenter who predicted that facilities will be unable to ensure compatibility between internal chemical management software systems and the new reporting structure, without timely access to updated EPA-provided Tier2Submit^® software.
• Implementation challenges — Facilities would be mandated to re-map each reported chemical (often before SDSs have been updated), claimed one commenter. State agencies would also have to incorporate the new hazard categories into their electronic reporting systems and revise guidance/training materials, according to another.
• New burdens with little benefit — While EPA announced that the rule was deregulatory, one commenter contends that it would make reporting “MORE burdensome.” The commenter also stressed that the rule would “not improve emergency planning or response.” Others emphasized that it exceeds what is necessary for harmonization with the OSHA HazCom standard and that the expanded reporting system would offer “little value.” Yet another commenter noted that using 112 hazard categories instead of 24 would overwhelm the public who have a right to know about the hazards in their communities.
• Rule characterization flaws — One commenter declared that “the rule’s characterization as ‘technical’ does not withstand scrutiny” because it substantively changes what information must be submitted; imposes non-trivial, potentially large costs on both the private sector and state/local programs; and conflicts with OSHA’s phased compliance framework.
• EPA obligation failures — Commenters also observed that EPA failed to assess or recognize “potentially large aggregate costs to the private sector and to state/local [agencies].” They also suggest that the agency estimate paperwork costs, determine whether small entities are affected, and request the Office of Management and Budget to review the rule. Finally, EPA has not meaningfully looked at costs and least-cost alternatives, one commenter said. The commenter gave alternative examples — “phased implementation aligned to OSHA’s schedule, optional dual-category reporting for one cycle, or a later effective date.”

What’s next?

Now, EPA is proceeding with writing a new final rule addressing all public comments. The agency published a parallel proposed rule on the same November date as the direct final rule. That proposal took comments (through December 24, 2025) on the substance of the direct final rule.

That means the agency has all it needs to work on a final rule. EPA made clear that no second round of comments will be collected, but the agency gave no hints as to when it might publish a new final rule.

Until then, the existing CFRs remain in place. In other words, the changes in the November 17, 2025, direct final rule will not take effect on January 16, 2026, as planned because they are now withdrawn.

Note that the direct final rule, had it taken effect, would not have impacted the Tier II forms due on or before March 1, 2026. Rest assured that it is “business as usual” for Tier II reporting due by March 1, 2026. Similarly, SDS reporting requirements continue as is.

For background information, check out our November 25th article, “EPA’s SDS/Tier II reporting now in lockstep with OSHA HazCom.”

Key to remember

On January 9th, EPA withdrew the November 17th direct final rule that would have amended Part 370. The withdrawal is prompted by an adverse comment. A new final rule is in the works.

Data centers and air permitting

Data centers depend on backup power to stay online during outages. Most use natural gas or diesel generators. These units release pollutants such as nitrogen oxides and particulate matter. When many generators operate together, their potential emissions can push regions close to or beyond National Ambient Air Quality Standards (NAAQS). This shift can threaten local attainment status and make it harder for nearby facilities to get new permits.

What EPA is doing

On December 11, 2025, the Environmental Protection Agency's (EPA’s) Office of Air and Radiation launched the “Clean Air Act Resources for Data Centers” webpage. It provides regulatory guidance, permitting tools, and technical letters. The goal is to make air permitting for data centers faster and more transparent while protecting air quality.

Why this matters for other regulated facilities

• Attainment status at risk

Large data centers add cumulative emissions from multiple generators. Even permitted emissions from nearby plants can combine and push an area into nonattainment. That change triggers stricter air permitting rules for everyone.

• Power demand competition

Data centers use large amounts of electricity. They often need on-site generators or new grid connections. This can strain local power supplies. In some cases, grid operators give data centers priority during peak demand, leaving other facilities with less reliable power.

• Stricter air quality modeling requirements

Some states now require detailed modeling for backup generators. For example, Illinois reviewed 34 generators for one data center before granting a permit. If modeling shows high emissions, regulators may limit operating hours or require extra controls.

Broader regulatory shifts

EPA recently updated its interpretation of New Source Review (NSR) rules. In September 2025, the agency said construction can start before full air permits are issued, as long as emission-related work waits for approval. This speeds up projects but makes it harder for neighboring facilities to predict cumulative emissions early.

What non-data center facilities should do

• Stay informed

Watch for new data center projects in your area. Their emissions could affect your permits.

• Engage early

Join public comment periods for data center permits. Push for full modeling of combined impacts.

• Plan for power

Work with grid operators. Understand how demand-response programs and EPA’s “50-hour rule” for emergency generators affect your reliability.

• Choose sites wisely

Consider locating new projects in areas with robust infrastructure and cleaner attainment status. Data centers might compete for the same grid upgrades or site approvals.

Key to remember: Data centers are more than tech hubs. They influence air permitting and power allocation. Their growth can affect your ability to expand, or even operate, under current compliance rules.

What counts as “navigable waters” today?

Post-Sackett, WOTUS includes traditional navigable waters, territorial seas, certain interstate waters, impoundments, tributaries that are relatively permanent, and adjacent wetlands that directly abut those waters through a continuous surface connection. Non-jurisdictional ditches do not create adjacency.

Recent changes

• Supreme Court in Sackett (May 2023): The CWA covers only waters that are relatively permanent and wetlands with a continuous surface connection to those waters. The Court rejected the “significant nexus” test.
• Conforming amendments (September 2023): EPA and the USACE removed the significant nexus standard, revised adjacency, and clarified that interstate wetlands are not automatically WOTUS.
• Field guidance (March 2025): EPA and USACE directed that non-jurisdictional ditches, swales, pipes, and culverts do not create a continuous surface connection. Wetlands must directly abut the water.
• Proposed rule (November 2025): Adds definitions for “relatively permanent,” “tributary,” and “continuous surface connection.” If finalized, federal coverage will narrow further.

Where each rule applies

Implementation is split:

• 2023 amended rule: In effect in 24 states, DC, and territories.
• Pre-2015 regime + Sackett: Applies in 26 states, including Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.

Kentucky now follows the 2023 rule except for certain litigants. Always check EPA’s “Current Implementation” page to check state status before filing permits.

Why it matters to industry and commerce

• Permitting: WOTUS defines whether projects need Section 404 (dredge/fill) and Section 402 (NPDES) permits. Narrower federal scope can reduce federal permitting, but state and tribal programs may still apply.
• Design: Wetlands separated by berms or uplands and connected only by ditches or culverts likely do not qualify as WOTUS. Early jurisdictional determinations (JDs) and hydrologic documentation are critical.
• Risk: Multi-state portfolios face uneven rules due to individual states having their own regulatory framework. The 2025 proposal could further limit federal reach, shifting responsibility to states. Multi-state industry and commerce should prepare for state variability and litigation-driven changes.

The legal and regulatory arc: why definitions keep changing

• Statute: The CWA regulates “navigable waters,” defined as “waters of the United States,” but does not define WOTUS.
• Court history: Court decisions have repeatedly reshaped and narrowed the definition of WOTUS. U.S. v. Riverside Bayview (1985) upheld adjacent wetlands; the scope narrowed when SWANCC v. USACE (2001) limited isolated waters; Rapanos v. U.S. (2006) deepened uncertainty by introducing two competing tests, “relatively permanent” vs. “significant nexus,” leaving regulators and courts with ambiguity.
• Rulemaking swings:

1. 2015 Clean Water Rule broadened coverage.
2. 2020 Navigable Waters Protection Rule narrowed it; later vacated.
3. 2023 WOTUS Rule was reshaped by Sackett and amended in August 2023.

• Current alignment: The 2023 amendments and 2025 proposal aim to match the Court’s standards.

Pending actions to watch in 2026

• Final rule: The 2025 proposal’s comment period closed Jan. 5, 2026. A final rule could standardize terms and narrow jurisdiction further.
• Litigation: Courts may lift or expand injunctions, changing which states apply which regime.
• Funding: FY2025 operations rely on continuing resolutions; WOTUS changes will come through rulemaking, not budget riders.

Practical steps for EHS and project teams

• Confirm your state’s regime before scoping.
• Request or update JDs early; document permanence and direct abutment.
• Track the 2025 proposal and submit comments where unclear.

Key to Remember: WOTUS and “navigable waters” definitions are narrowing, reducing some federal burdens but increasing state variability. For industrial and commercial projects, early jurisdictional work and state-specific permitting plans are essential to protect schedules and budgets.

What’s a RCRA solid waste?

The statutory definition (42 U.S.C. 6903(27)) and the regulatory definition (40 CFR 261.2) explain what’s considered a solid waste under RCRA.

Statutory definition

The act defines solid waste as:

• Garbage;
• Refuse;
• Sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility; or
• Any other discarded material from industrial, commercial, mining, and agricultural operations and from community activities.

It applies to physically solid, semisolid, liquid, and gaseous materials.

Regulatory definition

EPA (per 262.11) requires anyone who generates a solid waste to accurately determine whether the waste is hazardous. The first part of the hazardous waste identification process is to establish whether the material is a solid waste. EPA expanded the definition of solid waste for this purpose.

The regulation further defines solid waste as any material that’s discarded by being:

• Abandoned (defined in 261.2(b)),
• Recycled (defined in 261.2(c)),
• Considered inherently waste-like (defined in 261.2(d)), or
• A military munition (defined in 266.202).

If a material doesn’t meet these criteria, it’s not considered a solid waste and isn’t subject to RCRA regulations. If the criteria do apply, the material qualifies as a RCRA solid waste, and your facility must comply with EPA’s standards for managing either nonhazardous or hazardous RCRA waste.

What’s not a RCRA solid waste?

Many materials are excluded from the definition of solid waste. However, that doesn’t necessarily mean that these wastes are unregulated; some are excluded because other regulations apply (for example, industrial wastewater point source discharges are subject to the National Pollutant Discharge Elimination System rules). Make sure to check if other requirements apply to excluded materials.

Statutory exclusions

RCRA’s definition of solid waste excludes:

• Solid or dissolved material in domestic sewage;
• Solid or dissolved materials in irrigation return flows;
• Industrial wastewater discharges only at point sources (it doesn’t exclude industrial wastewaters collected, stored, or treated before discharge or sludges generated by industrial wastewater treatment); and
• Source, special nuclear, or byproduct material defined by the Atomic Energy Act.

Regulatory exclusions

EPA lists the wastes that are exempt from the definition of solid waste at 261.4. It excludes all of the wastes that the statutory definition does. The agency also exempts other wastes under certain conditions (such as spent sulfuric acid used to produce virgin sulfuric acid, reclaimed secondary materials reused in production, and recycled shredded circuit boards).

Why does this matter?

Knowing what’s considered solid waste is vital to compliance because it tells you if RCRA rules apply to your specific waste.

It’s also the first part of the hazardous waste identification process. Facilities use the process to determine how solid waste is regulated, either as nonhazardous waste subject to RCRA Subtitle D rules or as hazardous waste subject to RCRA Subtitle C standards.

Check state requirements

Most states implement the RCRA waste management regulations. State rules must be at least as strict as federal, and some states may have more stringent requirements. Check with your facility’s state environmental agency to confirm what standards apply.

Key to remember: Defining solid waste is the first step in determining whether RCRA rules apply to a material.

What’s changing and why it matters

Although EPA has been deregulating or loosening some requirements, there are still some standards being tightened across multiple fronts in the coming year:

• Renewable fuel standards (RFS): The EPA proposed higher volume requirements for 2026, including 24.02 billion renewable identification numbers (RINs), up nearly 8% from 2025. This increase pushes stricter expectations on fuel producers and organizations purchasing renewable fuels.
• Stormwater multi-sector general permit (MSGP): A new MSGP set to take effect by February 2026 will require quarterly PFAS indicator monitoring, expanded benchmark sampling, and resiliency measures in stormwater control designs.
• PFAS Reporting under the Toxic Substances Control Act (TSCA): TSCA Section 8(a)(7) mandates PFAS manufacturing and import data collection beginning in April 2026, through October 2026, with extended deadlines for certain small manufacturers.

Failure to prepare could lead to fines, reputational damage, supply chain disruptions, and permit delays. Companies that weave compliance planning into their 2026 strategy will be positioned not just to meet legal deadlines but to sustain operations smoothly.

Key areas of impact

• Renewable fuel standards (RFS) and air emissions The proposed increase in 2026 Renewable Identification Numbers (RIN) volumes, from 24.02 billion to 24.46 billion for 2027, signals tightening air and fuels policy that affects fuel use and emissions accounting.
• Stormwater management The upcoming 2026 MSGP requires expanded quarterly PFAS monitoring, new benchmark triggers, corrective action plans, and integration of climate resilience in design standards.
• PFAS disclosure (TSCA Section 8(a)(7)) Manufacturers and importers of PFAS must submit electronic reporting of usage, volumes, disposal, and exposure data between April and October 2026, with extensions available for smaller operations.

Steps to take now

• Audit compliance programs: Cross-check operations against RIN inventory, stormwater permits, and TSCA reporting duties.
• Upgrade monitoring and recordkeeping: Implement robust electronic systems to track PFAS, stormwater quality, fuel volumes, and emissions.
• Staff training: Educate teams on PFAS obligations, new stormwater protocols, and RFS structures.
• Engage regulators early: Comment on proposed rules, consult during permit drafting, and flag issues during the notice-and-comment period.

Looking ahead

The EPA’s 2026 updates reflect a trend toward increased transparency and environmental accountability. Companies that treat compliance as strategic will not only avoid enforcement but also gain resilience and stakeholder trust.

Key to remember: Start planning now. Early action on EPA rule changes will save time, money, and headaches when enforcement begins.

Check the driver’s status

Your first step is to check the driver’s status on the full query report.

The record shows the driver’s status based on what has been reported to the DACH by the substance abuse professional (SAP) and motor carrier (or consortium/third-party administration on the carrier’s behalf). The driver will be classified as one of two statuses:

• Prohibited. The driver has a violation but shows no record of a completed SAP program and negative return-to-duty (RTD) test. Both pieces must be entered to change this status.
• Not prohibited. This status applies to drivers who:
  • Never had a violation in the system, or
  • Had a violation entered but have record of a completed return-to-duty process.

If the driver is in a prohibited status, you’re unable to use the driver in a safety-sensitive function. In fact, this status prevents a driver from operating any commercial motor vehicle (CMV), including a non-CDL CMV used in interstate commerce.

Carefully review the report

The query report will also indicate whether the RTD and follow-up programs have been completed. If there is no entry for a step, you must address it.

The query results offer details on violations, including:

• Violation information:
  • Type of violation, such as failed alcohol test, positive drug test, refusal to test, or actual knowledge;
  • Test date; and
  • Reason for the test (e.g., post-accident, reasonable suspicion); and
• Completed steps:
  • Date of a substance abuse professional’s (SAP’s) initial assessment;
  • Date an SAP’s determination the driver is eligible for return-to-duty testing; and
  • Date the follow-up testing plan was completed.

Using the report, you now know where the process needs to pick up. But in many cases, you need to seek information from parties outside of the DACH to get the full picture.

Verify and continue the process

Consider the following scenarios when using the information on the DACH report.

If the query doesn’t show an SAP program was started or completed, the driver must pursue the evaluation and treatment. Once the SAP enters the completed in the DACH, you need a copy of the SAP report/follow-up testing plan. Since you’re not the employer under which the violation occurred, you may need the driver to sign a specific written consent which permits the SAP to provide you with a copy of the report. Once received, you can send the driver for RTD test. If the test is negative, you must enter this in the DACH using your motor carrier’s account. The prohibited status is now removed. Using the SAP report, you must begin the follow-up testing plan. The completed follow-up testing plan is reported to the DACH by the employer who finishes the program.

If the query shows a completed SAP program and eligibility for a RTD test, you must request a copy of the SAP report to know if the driver is subject to drug and/or alcohol RTD testing. This requires that the driver sign a specific written consent form. The SAP or former employer needs to see this prior to releasing the record. Once a negative RTD test(s) is entered, you must begin the follow-up testing plan.

If the query shows a complete RTD program, but an incomplete follow-up program, you must contact former employers to learn of completed follow-up tests. The driver must sign a specific written consent form for the release of the information. Once received, along with a copy of the SAP report, you should know how many follow-up tests you must pursue with the driver.

What if you can’t verify what’s been completed?

There may be instances when the information you need is not available. For example, if a violation and any subsequent steps are older than five years, a former employer and SAP may not have the records since records can be purged.

If a former DOT employer fails or is unable to provide information (e.g., out of business), document your attempts. Contact the SAP for a copy of the follow-up testing plan and start the plan from scratch since you have no proof of any completed tests.

If you’re unable to get a copy of the SAP report, DOT doesn’t provide instructions on how to proceed. But one thing is evident in the regulations. The DOT doesn’t permit a new SAP for a re-evaluation. In fact, the DACH has no place for a new SAP to even enter a completed evaluation since one has already been entered by someone else for the violation.

To demonstrate due diligence, it’s recommended that you document your attempts to obtain a copy of the SAP report. Then, as a good faith effort, begin a follow-up testing program using the minimum number of tests (6 tests in the first 12 months after returning to duty). This is a far better compliance strategy than ignoring the problem.

Key to remember: A DACH query is the first step in learning whether a driver has a previous DOT drug or alcohol testing violation. If the driver’s record shows outstanding steps, motor carriers need to verify what’s been completed and resume the process, when necessary.

“1 year and for 6 months”

Originally, carriers were required to retain inspection and maintenance records for 3 years. In 1979, the Federal Register documented a shift, reducing the retention period to “a period of 1 year and for 6 months after the motor vehicle leaves the motor carrier’s control,” as currently stated in 49 CFR 396.3.

The lack of a comma in that phrase has caused confusion ever since. Are the records to be maintained for 6 months after a vehicle is disposed of, or 18 months?

Fortunately, that 1979 document has the answer, stating the current requirements in a much clearer way:

“The time period for retaining the inspection and maintenance records is being reduced from the current 3-year requirement to 1 year. Once the vehicle leaves the service of the carrier, the records need only be maintained for 6 months.”

“Preceding 12 Months”

Regulations for the periodic inspection in 396.17 require each vehicle to have been inspected “at least once during the preceding 12 months.” Does that mean the next inspection must be completed within 365 days of the last one, or that it must be completed before the end of the month, 1 year later, potentially allowing nearly 13 months between inspections?

The answer lies in a 1988 Federal Register when the rule was first adopted. It says the USDOT considered adding “365 days” to the rule but got pushback from the industry, which argued that “a day-specific requirement was too restrictive and inconsistent with most inspection program periods.”

As a result, the inspection sticker need only contain the month and year of the last inspection, and most enforcement agencies allow a grace period for the next inspection until the end of the month. However, completing each subsequent inspection within 365 days is highly recommended since that’s the common understanding of “12 months.”

Lubrication records

The regulations in 396.3 used to specify that lubrication records must be retained, but the rules no longer say that. So if today’s regulations only say you need to keep records of “inspection, repairs and maintenance,” does that include lubrication records?

The answer is yes, and it dates back to 1994 when the USDOT stated that “the lubrication record … is a maintenance record, [so] the requirement is redundant.”

Bottom line: lubrication is considered part of “maintenance” and therefore you must maintain all lubrication records for at least 12 months.

We need the tire size?

Many motor carriers are surprised that “tire size” is a required record in a vehicle file. It’s nestled among a list of vehicle details that must be retained, such as the make, serial number, and year. But why tire size?

Tire size used to be one of several tire details that carriers had to retain, including the number of tires and their load rating. The industry was questioning the need for such details as far back as the 1970s, leading the USDOT to remove some (but not all) of them in 1979, when it wrote in the July 2nd edition of the Federal Register:

“The suggestion that tire records are not needed has been carefully studied. Tire size has a direct bearing on the load-carrying capacity of a vehicle, but ply rating or load rating may not be needed. The load or ply rating will be dropped, but size of tires will be retained.”

Tire size may seem out of place in today’s vehicle files, but at least the government provided a safety-based justification — even if we must look back nearly 50 years to find it.

Key to remember: Regulatory language is never arbitrary. To truly understand why the regulations are worded the way they are, motor carriers must sometimes look beyond the text and understand the story behind the rule.

To-do before October 1

Get ready for renewal by taking the following steps now:

• File all your highway use tax returns that are due.
• Pay your taxes. The state will not issue a new certificate of registration if you owe back taxes. Before you apply to renew, make sure that you’ve paid all taxes due under any of the programs administered by the New York State Tax Department, including:
  • HUT,
  • personal income tax,
  • International Fuel Tax Agreement (IFTA),
  • sales tax, and
  • withholding tax.
• Create an online account if you do not already have one and you want to renew your credentials and pay online (https://www.oscar.ny.gov/).
• Make sure your vehicle registration information is correct and accurate. Review and update your information as soon as possible. Incorrect information will delay the processing of your certificates and decals.

Beginning October 1

Once the renewal period opens, renew your credentials and pay your renewal fees online with One Stop Credentialing and Registration (OSCAR).

Submit your renewal application by November 30, 2024, to make sure you receive your decals in time to place them on your vehicles before January 1, 2025.

If you are already enrolled in OSCAR, use your current OSCAR password to renew online.

If you are not enrolled, visit OSCAR, and select Enroll Now. You must have a United States Department of Transportation (USDOT) number and an employer identification number (EIN).

To renew your registration:

1. Visit the OSCAR website and select HUT Renewal from the Business Type drop-down.
2. Enter your information in the USDOT#, NYS Tax ID#, and Password fields, then select Log in.
3. If you have 300 or fewer vehicles, choose either:
   1. Renew all HUT/AFC Certificates of Registration to renew all your active current series permits, or
   2. Select HUT/AFC Certificates of Registration to renew specific permits.
4. If you have more than 300 vehicles, choose either:
   1. Renew all to renew all your active current series permits, or
   2. File renewal to renew select permits.

If you are unable to renew electronically, you may file Form TMT-1.2, Renewal Application for Highway Use Tax (HUT) and Automotive Fuel Carrier (AFC) Certificates of Registrations and Decals – 25th Series.

Key to remember: Take steps now to renew your NY HUT and ensure you receive your new decals before the current ones expire.

Next steps for commercial carriers 

Commercial carriers and drivers who use the above-listed devices must stop using the devices and switch to paper logs or logging software to record their hours of service.

In addition, they must replace the devices with ELDs listed on the FMCSA’s ELD registry and begin using those compliant devices before the posted dates.

ELD providers who correct device deficiencies can be placed back on the list of registered devices. The FMCSA will inform the industry when revoked devices are compliant again.

ELD compliance standards

During the 60-day replacement period, the FMCSA has instructed safety officials to review affected drivers’ hours-of-service data using logging software, paper logs, or the ELD display.

After March 1 or March 17, respectively, any motor carrier that continues to use the revoked devices will be considered operating without an ELD. Drivers will be placed out of service and cited for “No record of duty status” (395.8(a)(1)).

Review the full list of registered devices at https://eld.fmcsa.dot.gov/List.

Federal law

Under the federal Fair Labor Standards Act (FLSA), employers may deduct overpayments from employees’ future wages, even if that would result in the employees being paid below the minimum wage.

Big lump-sum deductions, however, might not sit well with employees, risking negative employee relations and trust.

State laws

Just because the federal FLSA allows related deductions, many state laws have limits on how much employers may deduct.

In California, for example, employers may not make deductions to recover overpayments unless the employer and employee have a written agreement, and the employee voluntarily consents to the deduction. The deduction also can’t cause the employee’s pay to fall below the state’s minimum wage.

An ounce of prevention

To help prevent overpaying employees, employers may take a few steps, such as the following:

• Automate payroll processes as much as possible;
• Audit all related processes and tools regularly;
• Have clear timekeeping and payroll policies; and
• Encourage employees to review their payments and paystubs regularly, and ask them to report any issues quickly so mistakes can be resolved.

Key to remember: Mistakes happen, including those that result in overpaying employees. Employers can, however, take steps to fix them and prevent them from recurring.

How this affects FMLA administration

Under the FMLA, once an employee puts the employer on notice of the need for leave, the employer has 5 business days to get the employee an eligibility/rights & responsibilities notice. If an employer gets this notice in the mail on day one, it might not be seen as “received” by the USPS that day. If that delay causes the employee not to receive it within 5 business days, the employer has technically violated the FMLA.

The same is true for the designation notice. Once employers have enough information to determine that an absence qualifies for FMLA leave protections, they have 5 business days to get a designation notice to the employee. While most employers don’t worry too much about meeting these 5-day deadlines, missing them can be seen as part of other compliance issues.

The certification is where employers might also feel this change. Employees have at least 15 calendar days to return a completed certification, but those 15 days don’t start until the employee receives the request and form.

The same types of USPS delays could impact employees, too. Under the FMLA, if employees don’t get the certification back to employers within 15 days and no extenuating circumstances justify the delay, employers may apply their company policies to the absence after the 15-day window closes and before the employee provides the certification. They might get the certification in the mail on Tuesday, but the postmark might read Wednesday or Thursday. That doesn’t mean the employee didn’t send it on Tuesday.

Employers might need to be a little more flexible with this 15-day window for employees, while also staying on top of their own FMLA-related deadlines.

Key to remember: Due to changes in the way the USPS works, employers might have to adjust the timing of processing FMLA leave requests.

No particular form

Employees’ notice to employers may be either verbal or written. The notice may be informal and doesn’t need to follow any particular format.

Employers may not require employees to fill out a standardized leave request form for their military leave. They’re also prohibited from requiring employees to submit it to HR a certain number of days in advance of their military leave.

Employees don’t need to give their employers notice of their military leave when it’s scheduled for a time they’re not working (e.g., weekends). If, however, the uniformed service spans a period that overlaps with scheduled work, then employees must give notice of the military service that requires them to be absent from work.

How far in advance

Although the USERRA doesn’t specify how far in advance employees must give such notice, they should provide notice as far in advance as is reasonable under the circumstances. The Defense Department strongly recommends that employees give advance notice to their civilian employers at least 30 days before leaving for uniformed service when it’s feasible to do so.

Exceptions

Employees must give advance notice of pending military service unless giving such notice is prevented by military necessity, or is otherwise impossible or unreasonable under all circumstances. In those instances:

• Only a designated authority can determine “military necessity,” and such a determination isn’t subject to judicial review. In general, this includes situations where a mission, operation, exercise, or requirement is classified, or could be compromised or otherwise adversely affected by public knowledge. In certain cases, the Secretary of Homeland Security, in consultation with the Secretary of Defense, can decide that giving notice by intermittent disaster-response appointees of the National Disaster Medical System is precluded by “military necessity.”
• It may be impossible or unreasonable to give advance notice under certain circumstances. Such circumstances may include the unavailability of the employees’ employers or a requirement that the employees report for uniformed service in an extremely short time.

Other rules

Employees don’t have to ask for or get their employers’ permission to take military leave. Employees must only give their employers notice of pending service.

If employees tell their employers that they aren’t planning on coming back to work while they’re on military leave, employers may not terminate them.

Employees don’t waive the right to reemployment by telling their employers that they don’t intend to come back to work following the service. Service members are entitled to exercise their reemployment rights throughout the period in which they may report to work or apply for reemployment has passed.

Key to remember: Employers can expect employees to give them notice of military leave, but not in all cases.

New methods of communication are needed

The Equitable survey found that 55 percent of employees still routinely turn to materials from their HR departments to understand workplace benefits, which means almost half are getting information from an external source, or not getting it all.

Nearly 2 in 5 Gen Z employees (those in their 20s) said they went to social media sites like TikTok, Instagram, Reddit, and YouTube for help in understanding their benefits, and 30 percent of millennials (in their 30s and 40s) said they’ve used AI for benefits guidance.

These social media sources, while easily accessible, can be unreliable sources of information, since they aren’t specific to the benefits provided by individual employers. AI may provide inaccurate information for similar reasons, as well.

But the widespread use of both social media and AI may provide insights into how HR departments can communicate benefits information to employees more effectively.

Here are nine innovative ways to communicate information about voluntary benefits:

1. Use mobile-friendly tools. Make sure benefits information is easily accessible on mobile devices.
2. Make online content interactive. Incorporate videos, quizzes, and challenges to make learning more engaging.
3. Offer short webinars. Simplify complex benefits topics through concise, focused sessions.
4. Leverage social media and apps. Share updates via company intranets and dedicated benefits apps.
5. Personalize communication. Avoid a one-size-fits-all approach; tailor messages for different employee groups (e.g., young parents vs. near-retirees).
6. Emphasize transparency and simplicity. Provide complete information in easy-to-understand, jargon-free language.
7. Communicate year-round. Go beyond annual enrollment with ongoing education opportunities like lunch-and-learn sessions, FAQ posts, and expert-help resources.
8. Demonstrate the value of voluntary benefits. Highlight practical and monetary advantages, such as saving for major purchases.
9. Train managers and encourage questions. Conduct frequent training sessions for managers so they can answer basics employee questions about benefits. Also, foster a culture where employees feel comfortable asking about benefits.

Key to remember: Voluntary benefits can be an effective tool to help both employers and employees, but they tend to be underutilized. Revamping communication strategies to meet the needs of your workforce can boost enrollment in these vital benefits programs.

Clear exit routes and egress paths

OSHA regulations (29 CFR 1910.37) require that all exit routes remain free and unobstructed at all times. NFPA 101 Life Safety Code reinforces this by emphasizing clear egress paths and proper door operation during emergencies. In winter, snow and ice can quickly compromise these requirements, making it critical to plan ahead.

Design requirements

OSHA’s minimum width requirement of 28 inches applies to the structural component of a permanent exit route. This means the physical design of the exit must meet that standard. However, OSHA also states that exit routes must be “free and unobstructed,” which is where snow and ice become a compliance issue. Even if the structure meets the 28-inch requirement, accumulated snow or ice that narrows the path or blocks access violates OSHA’s intent for safe egress.

NFPA often requires wider exit route dimensions than OSHA’s minimum, especially in facilities with higher occupancy or specific hazards. Because local building codes or municipal regulations may adopt NFPA standards or even stricter rules, it is recommended to verify with your Authority Having Jurisdiction (AHJ) to ensure compliance with any additional requirements.

Performance requirements

Exit doors must open easily without special tools or excessive force, as required by OSHA and NFPA standards. Winter conditions can also compromise this requirement. Snow plowed against exterior doors, frozen gates or crash bars, narrowed sidewalks, and temporary storage of salt bags or heaters near exits can obstruct pathways and delay evacuation. Slippery outdoor stairways and walkways add further risk to safe workplace exiting.

Lighting is equally important. Emergency lights and exit signs must remain visible and functional, but snowbanks, ice buildup, or temporary coverings can block them, creating unsafe conditions and violating regulations. Recommended actions to minimize these hazards can include:

• Inspecting all walkways and exits after snow and ice weather events.
• Removing snow and ice promptly and applying de-icing agents.
• Keeping snow removal supplies and equipment away from exits and walking paths.
• Documenting inspections and corrective actions in a safety log.

Emergency action planning

OSHA requires in 29 CFR 1910.38 that workplaces with 10 or more employees maintain a written Emergency Action Plan (EAP). The EAP should clearly outline procedures for reporting emergencies, evacuation routes, and employee responsibilities including cold weather emergencies for organizations exposed to winter weather climates.

To prepare for winter weather emergencies, start by reviewing your existing plan and adding contingencies for snow and ice. Identify primary and secondary evacuation routes and ensure they remain accessible even during severe storms. Include procedures for clearing snow from exits and walkways and assign specific personnel to each task. Backup lighting should be addressed in case of power outages, and emergency communication systems should be tested regularly to ensure functionality in cold conditions.

Consider adding steps for shelter-in-place situations caused by blizzards or extreme cold. Provide guidance on maintaining indoor heat safely and ventilation for preventing carbon monoxide exposure from temporary heating devices.

OSHA also emphasizes the importance of training and communication as part of an effective emergency preparedness program. Employees must understand evacuation procedures, know their roles during an emergency, and be familiar with winter-specific hazards. This includes recognizing slip hazards, practicing safe walking techniques, and proper use of personal protective equipment.

Supervisors should go beyond basic instruction by conducting seasonal safety meetings that cover winter-specific risks. Training should explain the importance of maintaining clear exits, snow and ice removal priorities, and what steps employees should take if they notice blocked exit routes. Communication tools such as signage, email alerts, and mobile notifications can reinforce these messages during severe weather events. Effective communication ensures employees remain aware of changing conditions and know how to respond quickly and safely.

Key to remember: Winter weather can delay evacuations, so planning ahead is essential. Proactive inspections, updated emergency plans, and training are your best defense against winter hazards like blocked exits and frozen doors.

Walking-Working Surfaces

For many years, employers were required to post a plate on mezzanines, platforms, or similar work areas showing the weight capacity or load rating approved by a building official. OSHA removed that requirement in 2017, so these capacity plates are no longer required.

The current regulation at 1910.22(b) simply requires employers to ensure that each walking-working surface can support the maximum intended load. OSHA reasoned that builders consider maximum loads during design and construction.

Employers can certainly leave existing capacity plates in place and may want to check local building codes, which may still require a weight capacity posting.

Storage areas and racks

OSHA doesn’t explicitly require posting storage areas or shelves with weight capacities. Still, the agency has cited employers for unposted storage systems, particularly if a collapse occurred.

The weight of stored materials must not exceed the safe weight limits of shelving. Most industrial shelving is already labeled, helping identify capacities for each shelf or shelving unit. For shelving not labeled or built in-house, OSHA recommends determining capacity limits using sound engineering calculations, then clearly marking storage equipment with safe load capacities. Again, this isn’t technically required, but it can go a long way toward reducing human error and avoiding a possible General Duty Clause citation.

Other storage hazards

OSHA also looks to ANSI/RMI MH16.1 – Specification for the Design, Testing and Utilization of Industrial Steel Storage Racks, which recommends securing storage racks of various types and heights. This increases their stability and decreases the potential for tipping over.

Damaged shelves or supports, improper installation, and unsafe modifications can all increase the risk of worker injury. Storage shelving must be installed appropriately, limited to a safe height, secured properly, and guarded to prevent damage.

Mitigating shelving hazards

Employers are responsible for identifying and mitigating shelving hazards in the workplace. Some effective ways of protecting workers include:

• Inspect shelving and racking regularly for damage or defects. Train workers to report any damage, loose bolts, or other concerns immediately.
• Remove any damaged shelving or immediately isolate the affected area until it can be repaired or replaced.
• Label shelving and storage racks with load capacities and do not exceed storage capacities.
• Install guards on shelving uprights to prevent damage from incidental vehicle or forklift contact.
• Ensure materials stored on shelving, racks, and other storage devices are stacked, blocked, interlocked, and limited in height so they remain stable and secure.
• Ensure that materials don’t protrude from storage areas, such as boards or other items extending into pedestrian or vehicle aisles.
• Train workers to store heavier loads on lower or middle shelves and lighter loads on higher shelves.

Every employer that maintains sales stock or manufacturing supplies needs a safe and secure way to store those items. Following these best practices helps ensure that the storage itself doesn’t create additional hazards to workers.

Key to remember: Although OSHA no longer requires posting load ratings on working surfaces, employers should have load ratings on storage areas to help prevent overloading.

When does a job transfer or restriction become recordable?

OSHA’s rule in 29 CFR 1904.7 states that an injury or illness is recordable if it results in days away, restricted work, or a job transfer. “Restricted work” means the employee cannot perform one or more routine job functions or cannot work a full shift because of the injury.

“Routine job functions” are the tasks an employee regularly performs as part of their job, typically at least once a week. So, even if a restriction limits only occasional or non-routine duties, it may not count as restricted work. But if the restriction prevents the employee from doing routine tasks, then it is recordable.

As an example, Rachel strains her wrist lifting boxes. Her doctor says, “No lifting over 10 pounds for two weeks.” Rachel still comes to work, but instead of her usual warehouse duties, she does light clerical tasks. Because this restriction prevents her from performing normal job functions, it counts as restricted work and must be logged on the OSHA 300 form. However, if Rachel’s normal job functions did not involve lifting more than 10 pounds, say she primarily worked at a computer, then the restriction would not impact her routine tasks and would not be recordable.

What about restrictions that aren’t injury-based?

This is where confusion often creeps in. OSHA clarified in a 2016 letter of interpretation that restrictions imposed for reasons unrelated to physical ability, such as protecting product quality or operational efficiency, are not recordable. For example, Brandon cuts his finger but can still do his job. The company keeps him out of a sterile area to avoid contamination, not because he’s physically limited. OSHA says that’s not a recordable restriction because it’s about quality control, not capability.

Additionally, OSHA clarifies an important point about productivity. A slowdown in speed or efficiency does not make a case recordable as long as the employee can still perform all of their normal job functions. Recordability is based on physical limitations, not business-driven decisions or reduced output.

For example, if Ed injures his arm and works more slowly but still completes all his usual tasks, that’s not restricted work. Productivity loss alone doesn’t trigger recordability, the key factor is whether the injury prevents the employee from performing routine job duties.

How does counting days away, restrictions, or transfer work?

Once you determine a case is recordable, OSHA requires you to start counting the day after the injury or illness occurs and continue until the employee resumes all routine job functions without restriction. This is spelled out in 29 CFR 1904.7(b)(3)(vii). The count includes calendar days, not just scheduled workdays, and weekends and holidays are part of the total.

For example, if Cindy spends three days doing inventory instead of her usual production work, those three days go in the OSHA 300 log. If her restriction spans a weekend, those days count too, even if she wasn’t scheduled to work.

OSHA also sets a cap of 180 calendar days for combined totals of days away from work, restricted work, and job transfer. If the injury or illness continues beyond that point, you stop counting once the overall total reaches 180 days, even if the employee remains under limitations.

What if an injured employee leaves the company?

This scenario often creates uncertainty for supervisors. If an injured employee leaves, what happens to your OSHA log? OSHA addresses this in 1904.7(b)(3)(viii). The rule is straightforward but requires a bit of determination from the employer:

• If the departure is unrelated to the injury, you stop counting restricted days and days away from work on the employee’s last day. For example, Jeff accepts a promotion at another company. His wrist injury had him on light duty, but his decision to leave was for career advancement. You record the days up to his last shift and stop there.
• If the departure is related to the injury, you must estimate the total number of days the employee would have been restricted or away and record that estimate. OSHA expects employers to make a reasonable projection based on medical advice and typical recovery times. For instance, Gina resigns because her back injury prevents her from performing essential job functions. Her doctor anticipated six weeks of restrictions. Even though she left after two weeks, you record the estimated six weeks.

OSHA emphasizes that these estimates should be made in good faith. You’re not expected to predict the future perfectly, but you should use available information, such as physician recommendations or similar cases, to make a reasonable determination.

Key to remember: OSHA recordkeeping can seem complex, and many times create more questions than answers, but the agency offers clarity through its letters of interpretation. When in doubt, rely on these official resources, they’re designed to help employers make accurate, compliant decisions.

OSHA’s announcement on helmets vs. hard hats

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

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

The two main benefits of Type II safety helmets

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

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

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

Understanding the different types of head protection

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

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

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

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

Choosing the right head protection for your employees

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

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

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

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

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

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

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