Expert Insights: The Knights are STILL on the road

Proposed legislation

Bipartisan legislation has recently been introduced in the House that would require businesses to provide restroom access to truckers who are loading or delivering cargo at their warehouses, manufacturers, distribution centers, retailers, and ports.

Supported by leading organizations in the trucking industry, the Trucker Bathroom Access Act (H.R. 9592) was introduced on Dec. 15, 2022. The bill requires retailers, warehouses, and other establishments with existing restrooms to provide access to drivers who are loading or delivering cargo. Additionally, operators of ports and marine terminals must provide access for drayage and parking while accessing such restrooms.

This amendment to Title 49 would exempt some employers from the bill including filling and service stations, and restaurants 800-square feet or smaller with restrooms intended for employee use only. The bill doesn’t require employers to construct new restrooms but to give truck drivers the same access as employees or customers.

Your restroom availability affects their health

Commercial truckers and delivery drivers are the lifeline of our supply chain of supplies, products, and consumables. Working tirelessly all hours, during holidays and weekends, and throughout the pandemic, they continue to deliver critical food and emergency supplies to companies everywhere. Employers have the privilege of demonstrating gratitude to truckers and delivery drivers with a positive work environment.

The benefits of allowing truckers and delivery drivers the convenience and safety of readily available, sanitary restroom facilities are plenty. They’re able to rest and reset when necessary, which keeps them and others safer on the roads. Equally important, restroom availability prevents drivers from having to search for available facilities elsewhere, allowing them to keep a timely delivery schedule, limit supply chain delays, and ultimately lower costs for employers and customers.

Keys to remember

The proposed Trucker Bathroom Access Act will require retailers, warehouses, and other establishments with existing restrooms to provide access to truckers and delivery drivers who are loading or delivering cargo. Access to restrooms keeps them refreshed and ready to deliver essential supplies to companies across the country.

What does the standard require?

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

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

First aid trained or first responder?

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

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

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

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

What’s considered “near proximity”?

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

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

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

Training requirements

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

Keys to remember

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

The importance of CPR and early defibrillation

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

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

Signs and symptoms of cardiac compromise

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

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

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

OSHA requirements regarding CPR

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

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

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

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

OSHA requirements regarding AEDs — you might need a prescription

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

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

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

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

Training requirements

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

Keys to Remember

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

How would they help?

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

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

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

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

Inspections

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

CDLs

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

Parts and accessories

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

Other changes

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

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

Take action

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

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

Limitations

• Dangerous Goods Carried by Passengers or Crew (2.3)— Provisions for battery-powered mobility aids have been revised to include reference to the guidance on the end-to-end processes associated with the carriage of mobility aids.

Packing

The following packing instructions have been updated:

• 5.2.0.9 - Added a water capacity limit for non-refillable cylinders containing a flammable gas, limited to a water capacity not exceeding 1.25 L.
• PI 952 - Revised to include reference to "equipment."
• PI 954 - Clarified the rules for marking overpacks containing dry ice. The total net quantity of dry ice in the overpack must be marked on the outside of the overpack.

Packaging specifications and performance tests

• 6.0.3 - Clarified the requirements and formatting for UN specification marks on packages.

Documentation

• 8.1.6.9.2, Step 6 – Added a note to "reinforce that there is no requirement for the type, number and net quantity in inner packagings within the outer packaging of a combination packaging to be shown" on the shipping papers (Shippers Declaration for Dangerous Goods).

Radioactive materials

• 10.8.3.9.1—Added an additional example of the description for the first sequence of information on the Shipper's Declaration to address where a radioactive material has a subsidiary hazard, and the proper shipping name must be supplemented by the technical or chemical name.
• 10.8.6—Added two examples to show how radioactive materials with a subsidiary hazard should be described and how packages in an overpack should be shown.

Appendices

IATA has added a new appendix to the list of appendices in the DGR. Appendix H includes a list of changes IATA will make to the 2025 IATA DGR. IATA added Appendix H so that shippers and carriers have time to prepare for the substantial updates that are coming for 2025. Some of the changes include:

• Adding an exception for data loggers and cargo trackers with installed lithium batteries.
• Modifying the exception for COVID-19 vaccines to now apply to all pharmaceutical products.
• Adding a new classification for sodium ion batteries.
• Updating the list of dangerous goods and special provisions.
• Amending and adding several packing instructions.
• Revising the "lithium battery mark", which will be known as the "battery mark" in the future.

Making sure you are keeping up with these regulatory changes and preparing for future updates is extremely important if you want to avoid costly delays, fines, and lost revenue. Keep your hazmat employees up to speed and inform them of any changes they need to be aware of.

Key to Remember: IATA updates their DGR every year and changes to the 2024 IATA DGR become effective on January 1, 2024.

The basics of logging exemptions

To be able to use this logging exemption in 395.1(e)(1), the driver must:

• Stay within 150 air-miles of the work reporting location for the day (draw a 150 air-mile radius circle around the work reporting location for the day — the driver must stay within this circle),
• Be back to — and released from — the work reporting location for his/her 8- or 10-hour break within 14 hours, and
• Include the starting and ending times for the day and the total hours on duty on the time record for the day.

The company must retain the time record and have it available for inspection for six months.

What if the driver goes too far or works too many hours?

If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.

If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).

30-minute break exemption

When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).

If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.

Common myths

Here are some of the common myths and misunderstandings about the 150 air-mile exemption:

• The driver must have the time records in the vehicle. Myth. The driver simply needs to explain to an officer during a roadside inspection that he/she does not have logs due to operating under the 150 air-mile exemption and that the required time records are back at the carrier’s office (just telling the officer, “I don’t have any logs” will lead to a violation, so the driver needs to know to provide the full explanation).
• The driver must log the previous seven days if he/she had been using this exemption and suddenly can’t. Myth. If the driver cannot use the exemption on one particular day, that is the only day the driver must use a regular log (either paper or electronic).
• Passenger-carrying drivers and drivers hauling hazardous materials cannot use this exemption. Myth. There are no restrictions on the use of this exemption, so any commercial driver can use it.
• A driver that crosses state lines cannot use this exemption. Myth. As this exemption appears in the Federal Motor Carrier Administration (FMCSA) regulations, it can be used by interstate drivers.
• Only drivers that operate out of a “company terminal” can use the 150 air-mile exemption. Myth. As long as the driver makes it back to the work reporting location for the day within the appropriate number of hours, the driver can use the exemption.
• Drivers that move from one jobsite to another every few weeks cannot use this exemption. Myth. If a driver that normally uses this exemption switches work reporting locations, the day the driver switches work reporting locations is the only day the driver cannot use the exemption.
• Drivers covered by this exemption are also exempt from the driver qualification (licensing and medical cards), driving, and vehicle inspection requirements. Myth. The only rules the driver is exempt from are the logging requirement in 395.8 and the 30-minute break requirement in 395.3.
• The driver cannot drive more than 150 miles for the day. Myth. The driver can drive as many miles as he/she wants to or needs to, as long as the driver stays within the 150 air-mile radius circle and gets back to the work reporting location within the appropriate number of hours.
• If a 150 air-mile driver gets into a vehicle with an ELD, the driver must use it. Myth. The carrier can have the driver log in and have the driver entered into the system as an “exempt driver,” or the carrier can request that the driver not log into the device and then attach a comment to the unassigned driving time generated by the driver’s movements. The comment would need to explain that the driver using the vehicle was a 150 air-mile driver who submitted a time record. It is up to the carrier to decide which option to use. If stopped for a roadside inspection, the driver will need to be able to explain to the inspector that he/she is an exempt driver using the 150 air-mile exemption, so using the electronic log is not required.

What’s different with the ‘150 air-mile non-CDL property-carrying drivers’

The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.

If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.

If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.

Managing the use

If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).

If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.

Verifying compliance is important

During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!

What is an audit?

An FMCSA audit is a review to ensure that commercial motor vehicle (CMV) operations comply with the Federal Motor Carrier Safety Regulations (FMCSRs).

Audits assess compliance under the following six factors:

Factor 1— General: Parts 387 (financial responsibility) and 390 (accident register and records, FMCSA registration, and vehicle markings);

Factor 2—Driver: Parts 382 (drug and alcohol testing), 383 (commercial driver’s license (CDL) and 391 (driver qualification);

Factor 3—Operational: Parts 392 (CMV driving) and 395 (hours-of-service);

Factor 4—Vehicle: Parts 393 (parts and accessories), 396 (inspection, repair, and maintenance);

Factor 5—Hazardous Materials: Parts 171, 177, 180 and 397; and

Factor 6—Accident: Recordable accident rate per million miles.

Carriers are subject to three types of audits, including:

1. New entrant safety audits within the first 18 months of operation.

2. Focused audits that center on specific compliance issues in one or two factors.

3. Compliance reviews are comprehensive audits usually triggered by poor Compliance, Safety, Accountability (CSA) scores or valid safety complaints.

Safety ratings

The FMCSA will only assign a safety rating to a motor carrier after performing a compliance review or comprehensive investigation. Appendix B to Part 385 details the method used in the compliance review to arrive at one of the following three safety ratings:

Satisfactory: The motor carrier’s safety management controls are functioning and adequate.

Conditional: The carrier does not have adequate safety management controls to ensure compliance and must correct problem areas.

Unsatisfactory: The motor carrier does not have adequate safety management controls in place, and its violations prohibit the carrier from operating CMVs.

Why compliance matters

Compliance isn’t just about avoiding fines—it’s about protecting lives and livelihoods. Non-compliance can lead to:

• Hefty penalties,
• Out-of-service orders,
• Increased insurance premiums, and
• Reputational damage.

By maintaining compliance, carriers demonstrate a commitment to safety and reliability, which can enhance customer trust and business opportunities.

Risk management benefits

DOT audits, and preferably proactive mock audits, offer a structured opportunity to identify and mitigate risks before they escalate. Here’s how:

Early detection of issues: Audits can uncover gaps in recordkeeping, driver behavior, or vehicle maintenance that might otherwise go unnoticed.

Improved safety culture: Regular reviews encourage a culture of accountability and continuous improvement among drivers and staff.

Data-driven decisions: Audit findings provide actionable insights that can inform training programs, route planning, and equipment investments.

Insurance leverage: Demonstrating a strong compliance record can lead to better insurance rates and fewer claims.

Preparing for success

The best defense includes diligent recordkeeping, regular training, and compliance monitoring.

Carriers should:

• Maintain and consistently execute policies and procedures,
• Train staff on regulations,
• Use fleet management software to track compliance, and
• Conduct internal or “mock” audits to simulate an FMCSA review.

Keys to remember: FMCSA audits a vital checkpoint for motor carriers. Embrace the potential for a review as an opportunity to build a safer, more resilient business.

Why consolidate?

Consolidating DOT numbers involves merging several active Department of Transportation (DOT) registrations under one single number. This action helps to streamline operations. Rather than juggling multiple registrations, carriers can manage their entire fleet under one identifier.

A single registration:

• Helps avoid regulatory red flags: Multiple DOT numbers can trigger “chameleon carrier” concerns from regulators. This term refers to carriers that appear to avoid compliance scrutiny by shifting operations between different registrations. Consolidation eliminates such red flags and fosters transparency with the Federal Motor Carrier Safety Administration (FMCSA).
• Streamlines compliance and safety tracking: Managing one DOT number simplifies tracking of safety metrics, compliance records, and audit preparation. It provides a consolidated view of operations, reducing errors and making regulatory interactions smoother.
• Reduces administrative overhead: Instead of maintaining several filings, reports, and updates, carriers only manage one set of paperwork. This decreases time spent on administrative tasks and reduces the risk of missed deadlines or inconsistent data.

Mergers, acquisitions, and DOT number management

In the context of mergers and acquisitions, carriers often inherit multiple DOT numbers. Typically, the acquiring company will operate under its existing DOT number while the acquired company’s DOT number is no longer needed. It’s essential to properly deactivate or consolidate these DOT numbers to avoid confusion and ensure compliance.

Leaving unused DOT numbers active after an acquisition can create compliance risks, including inaccurate safety data reporting and increased administrative burden. Deactivating or merging the acquired company’s DOT registration helps maintain a clean and accurate operational profile with the FMCSA, while also simplifying insurance and regulatory filings.

How to consolidate DOT numbers

The following three-step approach can assist when merging DOT registrations:

1. Review all active DOT registrations: Identify all current active DOT numbers and evaluate which one will serve as the primary number after consolidation.
2. File updates with FMCSA: Key filings must be updated to reflect the consolidation:
   1. MCS-150 form: This form must reflect the carrier’s unified fleet information.
   2. BOC-3 filing: The Designation of Process Agent must be consolidated under the single DOT number.
   3. Unified Carrier Registration (UCR): Registration and fees must be updated to cover the consolidated operations.
3. Notify stakeholders and update internal systems: Inform insurance providers, customers, and internal departments about the consolidation. Update operational systems such as fleet management, dispatch, and compliance tracking tools.

Key to remember: Consolidating DOT numbers is a strategic move to reduce risk, simplify operations, and enhance safety oversight.

Equivalent, not similar

After using FMLA leave, an employee must be able to return to the same job or an "equivalent job." An equivalent job means a job that is virtually identical to the employee's original job in terms of pay, benefits, and other employment terms and conditions.

Pay and benefits

When employees return from FMLA leave, they have a right to:

• The same or equivalent pay premiums, such as a shift differential;
• The same opportunity for overtime;
• Any unconditional pay increases that occurred while the employee was on FMLA leave, such as cost-of-living increases;
• Any unconditional bonuses or payments; and
• Conditional pay increases, bonuses, or payments that are given to employees who use similar types of leave.

Generally, any benefits employees accrued before taking FMLA leave must be available to them when they return from leave. Employers may not require employees returning from FMLA leave to requalify for any benefits.

Working conditions

An equivalent position must also have substantially similar:

• Duties,
• Conditions,
• Responsibilities,
• Privileges,
• Status,
• Location, and
• Schedule.

Having someone fill in

Often, employers need to have someone fill in while an employee is on FMLA leave, particularly if the leave is continuous for several days or weeks. If they do, employers still have to reinstate the returning employee. They may not argue that the replacement worker did a better job than the original employee to deny reinstatement.

The FMLA does have some exceptions for returning key employees.

Key to remember: Employers must reinstate employees returning to work after FMLA leave to their original position or one that is virtually identical in terms that go beyond pay.

The intent of the standard

OSHA’s powered industrial truck (PIT) standard (29 CFR 1910.178) is intended to ensure the safe use of fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines. The standard outlines requirements for operational permits and certification.

And, though not specified in the standard itself, PIT operators must be at least 18 years old per federal child labor regulations.

License and certification Q&A

The OSHA PIT standard clearly defines requirements for training and certification. However, some licensing and certification information isn’t as clear. Here are some clarifications:

Q: Who can train, evaluate, and certify PIT operators?

A: OSHA requires in 1910.178(l)(2)(iii) that, “All operator training and evaluation shall be conducted by persons who have the knowledge, training, and experience to train powered industrial truck operators and evaluate their competence.” The OSHA standard doesn’t further define this requirement or set any specific or additional certifications.

Q: Does OSHA require PIT operators to have a valid driver's license?

A: Federal OSHA has no requirement that a forklift operator has a valid motor vehicle driver's license. Some states are more stringent, so check your local and state requirements to confirm.

Q: Does OSHA have regulations that impact an employee’s ability to operate PITs if they’ve received a DUI or suspended license?

A: Because OSHA doesn't require a valid motor vehicle driver's license, the status of that license doesn’t impact PIT operator permitting. Individual states or the employer may have policies that dictate otherwise.

Q: Are PIT drivers required to have their license on them when they are working?

A: Federal OSHA doesn’t require PIT operators to have a license or permit. However, some states such as Michigan do require this. Typically, in states that require a permit or license, the license must be “readily available.” Companies have the option to require the permit or license be carried with the operator.

Q: Are operators required to be trained on each manufacture of PIT model?

A: A June 15, 1999, OSHA letter of interpretation (LOI) clarifies that operators are to be trained and evaluated in the safe operation for the type of truck they’ll be assigned. Operators wouldn’t need additional training for same truck types but would need additional training when truck- or workplace-related training topics are different.

Q: Do PIT operators need to be recertified if they move from one state to another with the same company?

A: In an LOI dated October 1, 1999, OSHA states, "As long as the employer has a reasonable basis to believe that the third-party trainer is qualified and has a program that meets the requirements of the standard, it can rely on that trainer to conduct the training and evaluation of employees and can certify that these employees have been trained. However, the employer may need to provide additional training on site-specific or truck-specific matters." This shouldn’t require retraining for the same type of forklift as already certified; however, workplace conditions or other factors of the new work location may require training for forklift operation in the other state(s).

Operator Impairments

In addition to being properly trained and evaluated, OSHA expects employers to ensure physical capabilities. OSHA references the American National Standards Institute (ANSI) Standard B56.1-1969. Section 6 clarifies that, “Operators of powered industrial trucks shall be physically qualified. An examination should be made on an annual basis and include such things as field of vision, hearing, depth perception, and reaction timing."

Employers should consider OSHA PIT regulations and the General Duty Clause, ANSI standards, and the Americans with Disabilities Act (ADA) requirements when evaluating physical qualifications. In short, if a worker demonstrates the visual, auditory, and mental ability to safely operate PITs, he or she is permitted to operate them.

Keys to Remember

OSHA requires employers ensure the safe use of forklifts and other powered industrial vehicles. Employers must ensure operators have the knowledge, skills, and physical ability to safely operate PITs.

What is retaliation?

Retaliation occurs when an employer takes negative action against an employee because that employee made a discrimination claim against the employer or supported another employee’s claim.

There are three elements of an employee retaliation claim:

1. The employee opposed discrimination.
2. The employer or supervisor took adverse action, such as terminating or demoting the employee.
3. There is a connection between the protected activity and the adverse action.

Examples of employee opposition to discrimination include:

• Threatening to file a charge or other formal complaint alleging discrimination,
• Complaining to anyone about alleged discrimination against oneself or others,
• Refusing to obey an order because of a reasonable belief that it is discriminatory, and
• Requesting reasonable accommodation or religious accommodation.

“Retaliation isn’t always intentional,” Colunga said. “Sometimes it’s a mistake. An employee brings up concerns and is then punished.”

She said if a leader receives a complaint that “doesn’t feel good,” they should step back and try not to react right away by punishing the employee.”

What can an employer do?

Colunga said the first question an EEOC investigator will ask an employer when looking into a charge of retaliation or any type of discrimination is, “what is your policy, and did you follow it?”

She said a good policy clearly spells out how employees can report discrimination.

“It makes employees feel good and safe as employees if they know where to go when there are issues,” Colunga said.

She added that it’s also important to display the EEO (Know Your Rights: Workplace Discrimination is Illegal) poster in the workplace where people can see it. Investigators will look for it, she said.

When asked by an attendee about employee records, Colunga reminded employers to keep medical records separate from employee files, and to maintain files for at least one year after an employee leaves the company, or if there is a complaint, hold on to the file until the matter is resolved.

Key to remember: Retaliation has been the number one discrimination charge received by the EEOC for each of the past five years. In a recent webinar, an EEOC official advised employers that training, a strong policy, displaying the EEO poster, and good recordkeeping can help employers avoid retaliation and other discrimination charges.

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.

Freedom of speech

Some private-sector employees believe that the First Amendment gives them the right to free speech in the workplace, but those protections generally apply only to the federal government under certain circumstances. Contrary to popular belief, private employers may generally limit employees’ communication and speech, including political talk, during work hours. Such policies or practices, however, must comply with applicable laws, like:

• The National Labor Relations Act (NLRA),
• Title VII of the Civil Rights Act of 1964 (Title VII), and
• State/local employment laws.

The NLRA, for example, gives private-sector employees the right to discuss and criticize their terms and working conditions. As such, they may organize to try to improve those conditions. This applies to both unionized employees and non-unionized employees.

It doesn’t, however, protect employee speech outside of this area. If one employee simply voices an opinion, and that opinion isn’t related to the work/workplace, the employee wouldn’t have NLRA protections.

Title VII protects employees from discrimination based on protected characteristics. While political discussions can center on protected characteristics, political views by themselves aren’t protected characteristics.

How to curb employer risk

Employers may have a policy to help limit heated talk and the potential escalation. Such a policy can require employees to treat each other with mutual respect and to have civil and collaborative relationships.

A policy might indicate that the employer won’t tolerate disrespectful behavior in the workplace, and will intervene at the earliest sign of conflict to correct any misconduct and prevent it from reoccurring. Employees who violate the policy could be subject to disciplinary actions up to and including termination.

Employer policies can define disrespectful behavior as using discourteous, rude, impolite, or offensive words, gestures, or other behavior that may devalue and undermine a person and their dignity or self-esteem, or create an intimidating, hostile, abusive, or offensive environment. Such a policy can also promote and maintain a safe and healthy work environment where every individual is treated with civility, dignity, and respect.

State laws

Some states, such as California, New York, and Connecticut, protect employees’ political speech and activities. These laws can prohibit employers from taking adverse action against employees for refusing to attend or participate in mandatory employer-sponsored meetings, often referred to as “captive-audience” meetings.

They can also prohibit employers from requiring employees to listen to or receive communications regarding employer opinions on political or religious matters. These laws broadly define “political matters” to include matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.

Key to remember: Employers may prohibit employee political discussions that don’t relate to the work or workplace, particularly if they could escalate into disrespectful behavior.

#1 Start here

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

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

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

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

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

#2 Train on these topics

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

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

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

Truck-related topics include the following:

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

Workplace-related topics are examples like these:

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

#3 Determine success

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

#4 End here

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

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

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

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

Action item

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

Key to remember

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

OSHA compliance (the minimum)

In 29 CFR 1910.38 OSHA says that if your workplace falls under certain standards, you need to have an Emergency Action Plan (EAP). This plan then must cover how people will evacuate during an emergency, who’s responsible for making sure everyone gets out safely, and how you’ll account for everyone once they’re outside. However, OSHA doesn’t specifically say that you must post emergency maps.

Even though they’re not technically required, emergency maps are still “highly recommended.” OSHA even includes them in a non-mandatory appendix as a best practice. Think of them as a visual cheat sheet that helps people quickly figure out:

• where the exits are,
• which direction to go based on their location, and
• where to meet up once they are safe

In a real emergency, when stress levels are high and time is short, a clear map can make all the difference in minimizing injury and protecting lives.

Beyond just compliance

Compliance to regulatory requirements is a necessity, but is not always enough to ensure a safe workplace in all scenarios. To truly ensure safety workers, we need to dig deeper. Emergency maps enhance safety beyond compliance by:

Simplifying training: For new employees, contractors, or visitors, emergency maps provide an immediate visual reference. Instead of relying solely on verbal instructions or lengthy instructions, people can quickly see where they are and how to exit safely.

Reducing confusion: In large or complex buildings, it’s easy to get disoriented, especially in high stress situations. Clear, well-placed emergency maps help people make quick, informed decisions. They show not just exits, but can also show fire extinguisher locations, first aid kits, and safe assembly areas.

Demonstrating preparedness and proactive safety: Having visible, up-to-date emergency maps signals that your organization takes safety seriously. This can be reassuring to employees and visitors alike. It also reflects positively during inspections and audits showing that you’ve taken proactive steps to mitigate risk.

Recognizing other authorities may require it: While OSHA doesn’t require emergency maps, many local fire codes, building regulations, or industry-specific standards may. This can cause organizations to be non-compliant and face penalties without them. Additionally, insurance carriers may provide incentives to including maps in planning for emergencies.

Best practices for effective emergency maps

Overall emergency maps should be easy to read and understand, posted in visible or “conspicuous” spots like near exits, elevators, and break rooms, and updated whenever your layout or procedures change. Below is a simple checklist you can use to review your organization’s emergency maps.

Site accuracy

• Make sure all exits are easy to find on the map.
• Show where fire extinguishers, alarms, and first aid stations are.
• Point out any dangers like chemicals or machines.
• Include safe zones or meeting spots.
• Make sure the "You Are Here" marker is clear and easy to see.

Design

• Use standard symbols everyone understands.
• Include a legend to explain all symbols and icons.
• Keep the layout simple and uncrowded.
• Use high contrast between the background and text/symbols.
• Use large, easy-to-read fonts.

Accessibility

• Provide labels in different languages if needed.
• Show routes for people with disabilities.
• Consider color blindness and visual impairments in the design.
• Make the map easy to understand for all reasonable occupancies.

Placement and visibility

• Post maps at eye level.
• Place maps near exits, elevators, and busy areas.
• Make sure maps are lit up or glow in the dark in case of power outages.
• Each map should be specific to its location in the building.

Maintenance and testing

• Review and update maps at least once a year.
• Update maps after any changes to the building layout.
• Conduct drills to evaluate the effectiveness of the maps.
• Use feedback from drills to improve the maps.

Key to remember: OSHA doesn’t require posting emergency maps; however, they are strongly recommended as a best practice. Clear, visible maps help reduce confusion, speed up decision-making, and demonstrate your organization’s commitment to preparedness.

What do we know?

OMB’s website reveals these two proposals are under review:

• Updates to Respiratory Protection Standard Medical Evaluation Requirements, and
• Interpretation of the General Duty Clause: Limitation for Inherently Risky Professional Activities.

OSHA’s fiscal year 2026 budget request makes no mention of the two actions, and neither item appeared in the Fall 2024 Regulatory Agenda. The good news is OSHA is anticipated to publish its Spring 2025 Agenda in the coming days. This may shed greater light on the newest rulemakings.

In fact, it is unclear if OSHA’s latest rulemaking will be regulatory or deregulatory. What we do know is both proposals are listed as “not economically significant,” meaning they will not have an impact on the economy of $100 million or more and will not adversely affect any sector of the economy.

The new proposals could come up quickly! OMB review typically takes 90 to 120 days, which means the proposed rules could be published in the Federal Register as soon as September or October. We’ll keep you posted!

Incentives and testing allowed

The recordkeeping rule at 1904.35(b)(1)(iv) states, “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” In a memo dated October 11, 2018, OSHA stated that this provision “does not prohibit workplace safety incentive programs or post-incident drug testing.”

The memo noted that many employers establish incentive programs and conduct drug tests to promote safety. It clarified that such programs would be in violation of that regulation only if the employer took action to penalize an employee for reporting an injury.

Regarding post-incident testing, the memo did add that employers “should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” For example, if a forklift operator strikes a pedestrian, the employer should test the operator, not just the injured pedestrian.

If injuries do not get reported, employers cannot address the underlying hazards to prevent future injuries. Consistently enforcing safety rules (whether or not an injury was reported) helps demonstrate that employers are serious about eliminating risks, not merely concerned with reducing recorded injuries. Rewarding employees for reporting near-misses and hazards, and encouraging involvement in safety programs, should help reduce injuries by improving safety rather than just reducing the number of reported injuries.

For related information, see our article Peer pressure and workplace incidents: A dangerous combination.

Rate-based programs

Some incentive programs focus on the injury and illness rate and reward employees with a prize or bonus at the end of an injury-free period (whether a month or a year). Such programs are permissible as long as they are not implemented in a manner that discourages reporting.

The memo indicated that even if the employer withholds a prize or bonus because of a reported injury, OSHA will not cite the employer — if the employer “implemented adequate precautions to ensure that employees feel free to report an injury or illness.”

However, simply telling employees that the company won’t retaliate may not be good enough. The memo suggested taking positive steps to emphasize safety rather than injury rates. Examples could include:

• Rewarding employees for identifying unsafe conditions;
• Providing training to reinforce reporting rights and emphasize the non-retaliation policy; and
• Evaluating employees’ willingness to report injuries and illnesses.

Even though rate-based programs are permissible, they can be challenging to implement without creating negative incentives that discourage reporting. Instead, employers should implement programs that reward desired behaviors (such as reporting hazards) rather than rewarding employees for avoiding negative outcomes (like not getting injured). For more information, see our article, How to build a more effective safety incentive program.

Key to Remember: OSHA does allow post-incident drug tests and incentive programs, but employers should focus on rewarding positive behaviors and ensure that employees are not discouraged from reporting incidents.

Location, location, location

Twenty-two states and territories have plans that cover both private sector and state and local government workers:

At least as effective as federal OSHA

State Plans must be at least as effective as federal OSHA. They may:

• Adopt federal OSHA laws and regulations as is;
• Adopt federal OSHA laws and regulations with changes, as long as those changes are equivalent to or more stringent than the federal; and/or
• Enact laws and regulations that go above and beyond the federal requirements.

Most State-Plan states adopt the federal laws and regulations as is or with few additional requirements, while some go significantly beyond. For a list of State-Plan state regulations, see https://www.osha.gov/stateplans/statestandards.

The biggest issue with State Plans occurs when federal OSHA issues a new standard or a more stringent amendment to an existing standard. State-Plan states typically have six months to adopt it or complete their own standard. They also may show OSHA why such action is unnecessary; for example, the state has an existing standard that’s at least as effective as the federal standard.

Effective June 27, 2025, Kentucky occupational safety and health standards will be limited to those enforced by federal OSHA. The state will no longer adopt, promulgate, or enforce rules that are stricter than federal OSHA.

Becoming a State-Plan state

Section 18 of the OSH Act gives states an opportunity to run their own occupational safety and health plan upon OSHA approval. To gain OSHA approval as a developmental plan, a state must demonstrate that within three years it will provide:

• Adequate legislation;
• Standards-setting;
• Enforcement and appeals procedures;
• Public employee protection;
• A sufficient number of competent enforcement personnel; and
• Training, education, and technical assistance programs.

When all development steps concerning legislation, resources, and other requirements have been completed and approved, OSHA then certifies that a state is able to operate effectively. Once a State Plan is approved, federal OSHA funds up to 50 percent of the plan’s operating costs. Massachusetts and Maine were the most recent states to receive federal OSHA authorization, in 2022 and 2023, respectively.

OSHA continues its monitoring and evaluation of the State-Plan state to assure it maintains its level of effectiveness. If this level declines, OSHA can begin proceedings to withdraw approval and to reinstate federal enforcement authority. OSHA conducts an evaluation of the 29 State-Plan states each fiscal year. Annually, the agency publishes its Federal Annual Monitoring and Evaluation (FAME) Reports.

In April 2022, OSHA announced a proposal to reconsider and revoke Arizona’s State Plan status due to what the agency said was a decades-long failure on the state’s part to keep pace with federal OSHA penalties and regulations. Following corrective actions by the Arizona State Plan, OSHA withdrew its proposal in February 2023.

Key to remember: If you’re an employer in a State-Plan state, it’s important to understand who’s covered by your state instead of federal OSHA and how the state’s laws and regulations may differ from federal OSHA.