Expert Insights: Lessons that lead

e-Manifest compliance check

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

Use e-Manifest resources for additional help

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

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

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

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

Key requirements for end users

1. Leak detection and repair

• Automatic leak detection systems (ALDs) are mandatory for systems with 1,500 pounds or more of refrigerant.
• Leaks must be repaired within 30 days or a retirement/retrofit plan must be submitted
• Leak rate thresholds:
  • Industrial process refrigeration: 30%
  • Commercial refrigeration: 20%
  • Transport & comfort cooling: 10%

2. Refrigerant reclamation

• Repairs must use reclaimed refrigerants in supermarket systems, refrigerated transport, and commercial ice makers
• Reclaimed HFCs must contain no more than 15% virgin HFCs and be properly labeled

3. Recordkeeping and reporting

• Businesses must maintain detailed logs of:
  • Refrigerant purchases and usage
  • Leak events and repairs
  • Equipment servicing and disposal
• Records must be available for EPA audits at any time.

4. Disposal and recycling

• HFCs must be recovered from disposable cylinders before disposal
• Fire suppression systems must be recycled prior to disposal, and technician training is required

Sector-specific impacts

Grocery retailers

• Must retrofit or replace systems using restricted HFCs like R-404A or R-22
• Natural refrigerants (CO₂, ammonia) are encouraged but require new equipment and trained technicians
• Legacy systems may become costly to maintain due to refrigerant scarcity

Refrigerated transport

• Subject to leak repair thresholds and reclamation rules
• Must track refrigerant use across fleets and ensure timely repairs

Repair shops

• Must use reclaimed refrigerants for servicing regulated systems
• Required to follow EPA labeling and documentation standards

All end users: what you must do now

• Inventory your equipment: Identify all systems with refrigerants over 15 lbs and GWP greater than 53
• Install ALDs: For large systems, ensure real-time leak monitoring is in place
• Train staff: Ensure technicians understand new servicing, reporting, and disposal rules
• Upgrade Recordkeeping: Use digital tools to automate tracking and reporting

Looking ahead: state-level rules may be stricter

States like California, Washington, and New York are implementing stricter refrigerant rules that may exceed federal AIM Act standards. Businesses operating across state lines must monitor local regulations and prepare for additional reporting and inspections.

Key to remember: If your business uses refrigerants, the AIM Act likely applies to you. Start preparing now to avoid penalties and ensure compliance by 2026.

How equipment failure turns into a hazard:

Neglected maintenance can create serious risks, including:

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

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

Key elements of a safety driven PM program:

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

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

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

The requirement

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

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

Acceptable documentation

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

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

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

Violations typically occur due to:

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

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

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

How to stay compliant

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

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

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

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

Top violations

One of the most common violations involves insufficient tie-downs. Drivers often misjudge the number or strength of tie-downs required for a particular load. Regulations require that cargo be secured to prevent movement in every direction — forward, backward, sideways, and vertically. Failure to meet these standards can result in citations and immediate out-of-service orders.

Another frequent issue is the use of damaged or worn securement equipment. Inspectors regularly flag:

• Frayed straps,
• Damaged chains, and
• Broken load binders.

These defects not only violate FMCSA regulations but also pose serious safety risks. A single failed strap on a flatbed hauling heavy machinery can lead to disastrous consequences.

Improper blocking and bracing is also a recurring problem, especially in enclosed trailers. Freight that is not adequately stabilized can shift during transit.

This can lead to:

• Trailer damage,
• Compromised vehicle control, or
• Injury during unloading.

Preventive measures

To avoid these violations, fleets must prioritize driver training and thorough inspection protocols. Pretrip inspections should include a detailed check of all securement devices to ensure they meet regulatory standards and are free of defects. Drivers should be trained not only on how to secure loads but also on  assessing risk based on cargo type, weight, and distribution.

Preventive measures go beyond routine checks. They require a proactive mindset and a system that catches issues before they become violations. Fleets should:

• Implement layered inspection processes, including post-load audits and mid-route securement checks, especially for long hauls or high-risk cargo.
• Standardize securement procedures across the fleet to ensure consistency.
• Invest in modern securement technology such as tension indicators, smart straps, and automated alerts to reduce human error.

These tools help drivers verify that loads remain secure throughout the journey, especially during long hauls or in adverse weather conditions.

Key to remember: By staying informed, maintaining equipment, and fostering a safety-first culture, carriers can reduce violations, protect their Compliance, Safety, Accountability (CSA) scores, and ensure every load arrives safely and securely.

4 scenarios and best practices

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

1. Expired medical certifications

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

Examples of when medical certifications may expire include:

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

Best practices:

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

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

2. Suspended or revoked CDLs

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

Best practices:

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

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

3. Missed drug and alcohol tests

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

Best practices:

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

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

4. Failed English Language Proficiency (ELP) assessments

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

1.Interact with enforcement officers,

2.Complete forms, and

3.Understand road signs.

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

Best practice:

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

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

The number tell the story

Out of 4,629 inspections, there were 1,169 hazmat -related violations. Here’s the shocker, more than half of those (598 violations to be exact (51%)) were serious enough to place vehicles OOS. That means those vehicles couldn’t continue down the road until the issues were fixed.

So, what kind of issues were inspectors finding? Here’s a quick look at some of the most common issues found in the U.S.:

• Placarding violations: 192 total (non-bulk and bulk)
• Package marking issues: 126 total
• Missing emergency response information: 70 violations
• No PHMSA registration: 35 violations
• Leaking packages: 18 violations
• Undeclared hazmat: 16 violations

What gets you put out of service?

Not all hazmat violations will get you placed OOS. According to the CVSA OOS criteria, here are some of the violations that can get you sidelined:

• Missing hazmat shipping papers
• Missing 50% or more of required markings or placards
• Displaying incorrect placards for the hazard
• Having unauthorized, damaged, or leaking packaging
• Improper or no cargo securement
• Transporting non-compatible hazmat

What's being hauled?

During the blitz, inspectors looked at 7,294 packages across all nine hazmat classes. The most common materials found included:

• Class 3 (Flammable liquids) – 2,478 packages
• Class 2 (Gases) – 1,239 packages
• Class 8 (Corrosives) – 997 packages

What you can do

There are some actions you can take to reduce or eliminate your chances of receiving an OOS violation. To stay compliant and safe:

• Double-check your placards, labels, and markings.
• Make sure you have your hazmat shipping papers.
• Inspect your cargo for leaks or damage before hitting the road.
• Stay up to date on hazmat training.

Key to remember: The CVSA’s Road Blitz isn’t just about enforcement, it’s about safety. These inspections help keep dangerous materials from causing harm on the road.

Step 1: Breathe

It starts with pausing and realizing that you can’t do it all, Dickens said.

“The first thing I want you to do is breathe!” she said. “You cannot handle all this alone.”

Step 2: Identify what you’re good at

HR professionals should focus on their strengths and the changes they are best able to address. For other issues, they should leverage the expertise of those in their network.

“Don’t give yourself whiplash” by looking at all the changes taking place every day, she said.

Instead, focus on two or three things that fall into your wheelhouse.

“Anything outside that box, find someone else who is an expert,” she said.

Step 3: Look for partners

Those experts might be inside or outside an organization. Within their own company, HR professionals can work with their company’s legal counsel, for example, to understand the impact of legislative and regulatory changes and steps that need to be taken.

“You can lead in saying what the strategy is and let people do the things that they are good at,” Dickens noted. “You don’t necessarily have to lead everything by doing the work and executing on the work.”

If a company does not have an outside counsel, she advises HR professionals to champion for one to be added to the budget. She also suggests that HR professionals get to know the people in their company who specialize in government affairs.

“Take them out to lunch, go walk, have some or coffee,” she said. “Start talking to them about what your concerns are so that gets on their radar.”

When hiring for HR roles, she suggests looking for individuals who have expertise in areas that are not current strengths for team members. “Every HR generalist has an area they are really, really good at,” she noted.

While these strategies can’t stem the tide of change, they can make it a little easier to manage. As Dickens said, “These are practical things that can help you make your way through this.”

Key to remember: HR professionals and others with HR duties shouldn’t work in isolation when dealing with change. They should pause, consider what they are best at, and tap into their network for support.

FMLA certification basics

Employers aren’t required to use certifications, but if they do, the U.S. Department of Labor (DOL) has five different certification forms to use for various FMLA leave situations.

The forms are as follows:

1. Certification of Health Care Provider for Employee's Serious Health Condition,
2. Certification of Health Care Provider for Family Member's Serious Health Condition,
3. Certification of Qualifying Exigency for Military Family Leave,
4. Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave, and
5. Certification for Serious Injury or Illness of a Veteran for Military Family Leave.

Let’s focus on the first two, as these are the most common ones HR administrators use.

Who can fill out an FMLA certification?

The FMLA regulations describe the person who has the authority to fill out a certification as a “health care provider.” The good news is, the regulations include a lengthy list of medical professionals who fit this role.

Under the FMLA, a health care provider includes:

• A doctor of medicine or osteopathy,
• A podiatrist,
• A dentist,
• A clinical psychologist,
• An optometrist,
• A chiropractor (limited to manual manipulation of the spine as demonstrated by X-ray),
• A nurse practitioner,
• A nurse midwife,
• A clinical social worker,
• A physician assistant,
• A Christian Science practitioner, and
• Any health care provider from whom the employer or the employer's group health plan's benefits manager will accept a medical certification to substantiate a claim for benefits.

To be qualified to fill out FMLA forms, medical professionals must be authorized to practice in the state and perform within the scope of their practice. This means that the provider must be authorized to diagnose and treat physical or mental health conditions.

What about doctors in a foreign country?

If an employee or an employee's family member is visiting another country, or a family member resides in another country, and a serious health condition develops, the employer must accept a medical certification from a health care provider who practices in that country. This includes second and third opinions.

If a medical certification from a foreign health care provider is not in English, the employee may be required to provide a written translation of the certification.

Key to remember: The FMLA regulations spell out which medical professionals can fill out certification forms.

Temporary reassignment for intermittent leave

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

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

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

Reassignment after leave

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

These terms include:

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

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

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

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

Complimentary for the cause

The Machine Guarding under 29 CFR 1910 Subpart O and the Control of Hazardous Energy Sources (LOTO) standard at 29 CFR 1910.147 serve a very similar purpose of protecting workers. Fundamentally, they complement one another:

• Machine Guarding is a first line of defense, designed to prevent access to dangerous parts during normal operation (e.g., rollers, blades, gears, pinch points). Guards, barriers, and safety devices physically separate workers from moving parts and machine components.
• LOTO is a secondary control, used during servicing or maintenance (not normal operations) when guards may be removed or bypassed. It ensures that machines energy is isolated to prevent startup until work is complete.

Together, these standards form a layered safety approach with guards protecting workers during operations, and LOTO protecting them during maintenance. Since guards may be removed during servicing, the risk of injury is increased, which is where LOTO takes over to control energy and unexpected startup. Without proper LOTO, even a well-guarded machine can become deadly during maintenance or servicing tasks.

While both standards are intended to prevent injuries, they approach worker safety from different angles which can sometimes create confusion or conflict in implementation. The life of the young sanitation worker could have been saved if guards had been in place to prevent the fall into the grinder and proper LOTO had been performed to prevent unexpected start-up of the machine.

Combating the confusion

Both machine guarding and LOTO are essential safeguards designed to protect workers from machinery and energy source hazards, yet they operate under different OSHA standards with distinct expectations and applications. Additionally, confusion is created when dealing with routine vs. non-routine tasks. OSHA allows some minor servicing tasks to be performed without full LOTO if they are routine, repetitive, and integral to production, and if effective machine guarding is in place. As with the incident shared above, how would the employee have determined if cleaning the meat grinder was routine or non-routine — what qualifies as “routine?”

Routine operations are regular, recurring daily tasks with specific procedures. These may include inspections or daily adjustments to machines or equipment (e.g., frequent die changes or clearing regular jams. Non-routine operations are infrequent, unexpected, or new activities with unique risks. These often include emergency maintenance or process start-ups. Cleaning the meat grinder would likely be a routine activity; however, with the unique layout or size of the machinery, guarding alone was not sufficient.

Some maintenance does require removing guards, which exposes workers to hazards. If LOTO procedures aren’t strictly followed, there is a gap in protection. This can often result in the underuse LOTO while relying too heavily on guards when both should be used for full protection.

The confusion between machine guarding and LOTO requirements can be cleared up by:

• Clearly defining tasks that require machine guarding versus those covered by LOTO, and when both may be needed;
• Performing risk assessments to evaluate whether guarding alone is sufficient for specific machines or tasks;
• Documenting and communicating any exceptions to LOTO, including justification and alternative protective measures;
• Auditing programs and procedures regularly to identify and remediate gaps; and
• Training all supervisors and workers of the requirements in both standards.

Blurred by technology

Modern machines often include advanced guarding systems like light curtains or presence-sensing devices. While these tech marvels enhance safety, they can blur the lines between guarding and energy control. From an OSHA lens, these systems do not replace LOTO during servicing, which can add to the confusion for many trying to interpret compliance requirements. It’s imperative to understand that technology often helps protect workers from getting injured by machines, but they aren’t intended to necessarily control energy sources.

Clarity through training

Once employers have sifted through the collision confusion, workers must also be brought up to speed. Often, they have been trained in one standard but not the other, leading to inconsistent application. For example, operators may understand guarding but not LOTO procedures, especially in situations where operations and maintenance are handled by separate personnel.

Keys to remember: LOTO and machine guarding are not just essential, they are complimentary. When used together and correctly, they provide multi-layered approach to protection against serious injuries and fatalities.

Estimate for the Annual Summary

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

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

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

Count all calendar days

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

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

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

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

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

CRA first cut its teeth on the Ergonomics rule

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

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

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

Workings of the CRA

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

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

Latest court case

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

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

Court majority finding

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

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

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

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

Court minority finding

The minority argues that:

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

Implications

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

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

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

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

Key to remember

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

Aerial lifts

OSHA regulates aerial lifts at 29 CFR 1910.67 for general industry facilities and at 1926.453 for construction. Aerial lifts operate differently (the basket moves diagonally rather than just vertically like a scissor lift), so OSHA feels there’s a greater chance of a worker falling out. Hence, the requirement for the use of personal fall protection when in the basket.

General industry’s regulation (1910.67(c)(1)(v) is very clear and states, “A personal fall arrest or travel restraint system that meets the requirements in subpart I of this part shall be worn and attached to the boom or basket when working from an aerial lift.”

Construction’s regulation (1926.453(b)(1)(v) isn’t as clear, stating, “A body belt shall be worn, and a lanyard attached to the boom or basket when working from an aerial lift.” But there’s a note to read: “As of January 1, 1998, subpart M of this part … provides that body belts are not acceptable as part of a personal fall arrest system. The use of a body belt in a tethering system or a restraint system is acceptable.”

As a best practice, most companies provide only a fall protection harness to employees and not a body belt. This takes away the chance a worker could wear the body belt when they shouldn’t.

Scissor lifts

Scissor lifts are considered mobile scaffolds and are only regulated in the construction standard at 1926.452(w). However, the requirement for fall protection in a scissor lift is addressed at 1926.451(g)(1)(vii) and it calls for either standard guardrails or the use of a personal fall arrest system (PFAS).

Considering every scissor lift I’ve seen came equipped with standard manufacturer’s guardrails, OSHA doesn’t require a PFAS (harness, lanyard, and tie off) to be used. However, many employers still require workers to wear one and tie off. That way, there’s no chance they’ll forget to put one on when using an aerial lift. Employees will know anytime they use a scissor or aerial lift, they need to wear their fall protection harness and tie off to an approved anchor point.

Action items

Look at your company’s policy for the use of PFAS systems when operating an aerial or scissor lift. Do you require a harness, lanyard, and tie off routine to be used in both lifts? If not, maybe you should. It’ll be less confusing to employees, since they know to don their harness and tie off anytime they use a lift.

Keys to remember

Falls from aerial and scissor lifts are a concern. That’s why many employers require workers using these lifts to where a fall protection harness and use a lanyard to tie off to an approved anchor point.