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Single-use plastics: New bans and restrictions

Several states have enacted new bans on polystyrene foam containers, plastic straws, and produce bags:

• California SB 1046, as of January 1, 2025, bans expanded polystyrene (EPS) food containers unless they meet a 25 percent recycling rate. Precheckout bags must be compostable or made of recycled paper.
• Delaware SB 51 bans foam containers and plastic stirrers unless requested by the customer.
• Oregon SB 543 bans EPS containers and food packaging with intentionally added PFAS.
• Virginia bans food vendors from using EPS containers starting July 1, 2025.

Compliance tip: Audit your packaging inventory and supplier certifications. Ensure alternatives meet compostability or recyclability standards.

Extended Producer Responsibility (EPR): Expanding nationwide

EPR laws now apply in several states. These laws require companies to help pay for recycling and report packaging data:

• Maryland SB 901 allows multiple Producer Responsibility Organizations (PROs) and mandates cost-sharing for recycling.
• Washington SB 5284 targets consumer packaging with compliance deadlines starting in 2028.
• Colorado bans unregistered producers from selling covered products as of July 1, 2025.
• California SB 54 revised draft rules released in May 2025 to include new compliance dates and exemptions.

Compliance tip: Register with your state’s PRO, submit packaging data, and prepare for fee schedules. Track deadlines and exemptions closely.

Chemical recycling: Regulatory reclassification and impacts

States like Texas and Pennsylvania now classify chemical recycling as manufacturing, not waste management. This shift encourages investment but also changes permitting and emissions reporting obligations.

Compliance tip: If your facility uses or contracts chemical recycling, review air and water permits. Ensure alignment with manufacturing regulations.

Per and polyfluoroalkyl substances (PFAS): Phaseouts and hazardous waste updates

More states are banning PFAS in packaging and cookware:

• Minnesota, Oregon, Rhode Island, and New Mexico have banned or phased out PFAS in consumer products.
• Illinois SB 727 aligns PFAS limits with the Environmental Protection Agency standards.

Compliance tip: Update product Safety Data Sheets and conduct PFAS audits. Prepare for new reporting under TSCA Section 8(a)(7), including data on manufacture, use, and disposal.

Circular economy and composting: Recent mandates

States are setting zero-waste goals and requiring composting:

• Hawaii HB 750 launches a statewide recycling needs assessment.
• Maine LD 1065 requires large food waste generators to compost by 2030.

Compliance tip: Evaluate organics diversion programs and infrastructure. Consider partnerships with composting facilities.

EHS teams: What to do now

• Map your regulatory exposure: Identify which state laws apply to your operations.
• Engage with PROs: Register, report, and participate in rulemaking.
• Train staff: Ensure procurement, operations, and legal teams understand new requirements.
• Audit packaging and waste streams: Replace banned materials and optimize recycling.
• Monitor emerging legislation: Stay ahead of new bills and compliance deadlines.

Key to remember: Staying compliant in 2025 means more than avoiding fines. EHS teams must lead efforts to meet new waste laws and support sustainability goals.

The catastrophic incident

Picture an 80,000-barrel aboveground storage tank. On March 17, 2019, the circulation pump on the tank failed, allowing the release of a flammable butane-enriched naphtha blend. The release was undetected, as vapor accumulated in the area for 30 minutes. The vapor then ignited, resulting in a large-scale fire that spread to 14 other tanks. Fire crews were unable to extinguish it for three days. Black smoke cascaded into the community that was sheltering in place.

Then the petrochemicals, firefighting foams, and contaminated water broke past the secondary containment wall. An estimated 500,000 barrels of the materials then entered an adjacent bayou and reached a shipping channel contaminating a seven-mile stretch.

What did investigators find?

The CSB investigation found technical failures. The video identifies three important but missing things:

• Procedures to maintain the mechanical integrity of the pump,
• Flammable gas detection systems, and
• Remotely operated tank valves.

Outdated tank farm design was also a factor. Tanks were spaced close together and did not have subdivided containment systems.

Despite the process issues, regulatory shortfalls played a prominent role in the board’s findings. CSB Chairperson Steve Owens remarks, “A serious gap in federal regulations also contributed to the severity of this event.”

OSHA regulatory gap

The CSB video, "Terminal Faiure," points out that 29 CFR 1910.119, the OSHA Process Safety Management (PSM) standard, does not cover all flammable liquids. Those stored in atmospheric tanks and kept below their normal boiling point without chilling or refrigeration are not subject to the standard. This is referred to in industry as the “flammable liquid atmospheric storage tank exemption.” See 1910.119(a)(1)(ii)(B).

The terminal facility company took the position that the storage of the butane-enriched naphtha product in the tank was excluded from PSM coverage. It based this stance on the exemption. According to CSB, had the OSHA PSM standard applied to the tank and its equipment, the terminal facility would have been required to implement a formal PSM system.

That system would have given the company a better chance to identify and control hazards for the tank and its equipment. Had the terminal facility put a comprehensive PSM system in place that effectively identified and controlled the tank/equipment hazards, the company could have prevented this incident, argues CSB.

EPA regulatory gap

Unlike the PSM standard, the Risk Management Program (RMP) standard at 40 CFR 68 does not include an exemption for atmospheric storage of flammable liquids. However, CSB highlights that 68.115(b)(2)(i) has a significant loophole. It reads, “[I]f the concentration of the substance is one percent or greater by weight of the mixture, then, for purposes of determining whether a threshold quantity is present at the stationary source, the entire weight of the mixture shall be treated as the regulated substance unless the owner or operator can demonstrate that the mixture itself does not have a National Fire Protection Association [NFPA] flammability hazard rating of 4.”

The terminal facility determined that the butane-enriched naphtha product contained in the tank was not subject to RMP because it was an NFPA-3a rated material. While the CSB is not validating the terminal’s NFPA “3” finding, the board speculates that had the EPA RMP standard applied to the tank and its pump, this incident likely would not have occurred.

CSB recommends closing the regulatory loopholes

In the recently released video, CSB recommends that:

• OSHA eliminate the atmospheric storage tank exemption from the PSM standard — The board insists that the atmospheric storage tank exemption in the OSHA standard continues to allow for catastrophic incidents to occur. Without PSM coverage, necessary safeguards are not being implemented for equipment that should otherwise be covered, CSB says.
• EPA modify 68.115(b)(2)(i) to expand coverage of its RMP standard to include all flammable liquids, including mixtures, with a flammability rating of NFPA-3 or higher — NFPA-3 flammability rated materials have resulted in significant explosions and fires similar to those contemplated to occur from NFPA-4 rated materials, observes CSB.

Owens emphasizes, “We believe that our recommendations, particularly to OSHA and EPA, to expand regulatory oversight of these kinds of chemicals and facilities will help ensure that a similar incident does not occur in the future.”

Key to remember

A new CSB video recounts the events involved in a massive storage tank fire. At the same time, the video warns of blind spots in OSHA PSM and EPA RMP regulations that may lead to other incidents in the U.S.

What are the preconstruction permit requirements?

Under the New Source Review (NSR) regulations (40 CFR Part 51 Subpart I and Part 52 Subpart A), businesses that build a new facility or make major modifications to an existing one have to obtain a preconstruction permit to “begin actual construction.” EPA defines “begin actual construction” as “physical on-site construction activities on an emissions unit which are of a permanent nature.” It covers activities including (but not limited to) installing building supports and foundations, laying underground pipework, and constructing permanent storage structures.

There are three types of preconstruction permits: Prevention of Significant Deterioration (PSD) permits, nonattainment NSR permits, and minor source permits. The permits define:

• What construction is allowed,
• Emissions limits, and
• How the source must be operated (if applicable).

It’s important to note that most preconstruction permits are issued at the state or local levels. The requirements must be at least as stringent as EPA’s.

What’s the case?

A county air quality district in Arizona asked EPA to assess whether it may allow a company to start the first phase of construction on a semiconductor manufacturing facility before obtaining an NSR permit if no emissions units are involved.

EPA answered the request with TSMC Arizona Begin Actual Construction — EPA Response Letter (September 2, 2025) and published the letter as new guidance.

Facts of the case

The company builds its facilities in three phases and doesn’t install the semiconductor manufacturing equipment until all phases are complete.

The first phase of construction consists of building the core and shell of the facility, which includes the foundation, a steel superstructure, and external walls. The building will eventually house emissions units (semiconductor manufacturing equipment). However, the company stated that the first phase of construction doesn’t involve any air pollution control devices, emissions units, or foundations for emissions units.

The county air quality district agreed that if a structure contains no emissions unit, it’s not subject to NSR permitting because it doesn’t emit or have the potential to emit pollutants.

EPA response to the case

In the September 2025 response letter, EPA recognized that the definition of “begin actual construction” prohibits on-site construction of an emissions unit without a permit, but it doesn’t prohibit on-site construction of the parts of a facility that don’t qualify as an emissions unit.

The agency determined that the county air quality district may allow the company to start the first phase of construction (even if it’s of a permanent nature) before it obtains an NSR permit as long as it doesn’t involve construction on an emissions unit.

What are EPA’s regulatory plans?

The agency will conduct rulemaking to clarify what construction activities need an NSR permit and what construction activities can proceed without one. It plans to amend the NSR regulations in 2026 by:

• Revising the definition of “begin actual construction," and
• Establishing how permitting authorities may distinguish parts of a facility that are and aren’t emissions units or parts of emissions units.

Until then, EPA will address preconstruction permitting issues on a case-by-case basis.

How should facilities respond?

If you’re planning to build a new facility or make a major modification to one, consider these tips to help you comply with the NSR regulations:

• Check whether the state and local requirements are the same as or stricter than federal rules. The state environmental department’s website is a good place to start.
• Contact the permit-issuing agency (likely the state or local air pollution control agency) for direct help with your specific project.
• Watch EPA news announcements for updates on rulemaking. You can also track the Federal Register, where the agency publishes proposed and final rules.

Key to remember: EPA plans to conduct rulemaking to help distinguish which construction activities need a preconstruction permit for air emissions and which activities don’t.

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.

Details of the rule

Effective immediately, under the interim final rule (IFR), to obtain a non-domiciled CLP or CDL, non-citizens (except lawful permanent residents) must meet specific requirements, including possessing an unexpired foreign passport and a valid, non-expired employment-based visa.

State driver licensing agencies (SDLAs) will be required to query the Systematic Alien Verification for Entitlements (SAVE) system to verify the non-domiciled CDL applicant’s immigration status.

The SAVE system, administered by U.S. Citizenship and Immigration Services (USCIS) is used by government agencies to verify the immigration status and U.S. citizenship of applicants for public benefits and licenses.

The IFR shortens the term of a non-domiciled CDL to one year or the expiration date of the visa, whichever occurs first. Also, all renewals will need to be completed in person at an SDLA office (no mail or online renewal option).

Enforcement action against California

FMCSA has also announced that in addition to this emergency rule, FMCSA has initiated a direct enforcement action against California. The state must immediately:

• Pause issuance of non-domiciled CDLs,
• Identify all unexpired non-domiciled CDLs that fail to comply with FMCSA regulations, and
• Revoke and reissue all noncompliant non-domiciled CDLs if they comply with the new federal requirements.

California has 30 days to come into compliance, or FMCSA will withhold federal highway funds — starting at nearly $160 million in the first year and doubling in year two.

FMCSA cited a recent audit that revealed that 25 percent of non-domiciled CDLs were issued improperly as the reason for the immediate action.

When is a certification required?

In most cases, you need to include the certification any time hazmat shipping papers are required. You can use any of the certification statements listed in 49 CFR 172.204. Keep in mind, the statement must appear on shipping paper as it is listed in the regulations. The most commonly use certification statement is:

“This is to certify that the above-named materials are properly classified, described, packaged, marked and labeled, and are in proper condition for transportation according to the applicable regulations of the Department of Transportation.”

However, there are a few exceptions where the certification statement isn’t needed, which include:

• Shipments of hazmat in cargo tanks supplied by the carrier.
• Private carriers transporting hazmat not intended for reshipment or transfer.
• Empty tank (rail) cars being returned that haven’t been cleaned or purged.

So, if you're a shipper using your own vehicle and you're not handing the material off to another carrier, you might be off the hook.

Do you need to sign it?

Yes, a signature is required, but it doesn’t always have to be handwritten. The certification must be legibly signed by a principal, officer, partner, employee of the shipper, or their agent. You can sign it:

• Manually (handwritten)
• By typewriter
• By other mechanical means (like a computer-generated signature)

For rail shipments, the certification can even be done verbally or electronically, as long as it meets specific documentation requirements.

Where does the certification go?

The certification needs to be located directly on the shipping paper that lists the required hazmat shipping description. That means it should be clearly visible and easy to find, not on a separate document or attachment.

Key to remember: If you're involved in hazmat shipping, the certification is your way of saying, “I’ve done everything by the book.” In most cases, it’s not just a formality, it’s a legal requirement.

Why the change?

CBP requires filers to provide specific details for their shipment to ensure compliance with:

• 19 CFR 4.7a (Vessel),
• 19 CFR 122.48a (Air),
• 19 CFR 123.91 (Rail),
• 19 CFR 123.92 (Truck), and
• 19 CFR 128.21 (Express consignments).

The required information includes:

• Cargo description: A clear, accurate, and specific cargo description sufficient for CBP to identify the commodity shipped.
• Consignee information: The name and address of the consignee to whom the cargo will be delivered.
• Shipper information: The full company name and address identifying the foreign party initiating the shipment.

This change to the system is intended to reinforce the trade community’s responsibility to ensure the accuracy of manifest data, and hold the appropriate parties accountable for the data they submit.

According to the CBP announcement for this action, automated rejection of filings before arrival:

• Provides time for filers to remedy the error,
• Streamlines the import process, and
• Prevents an overload of held shipments at the ports.

Watch for a rejection message

Beginning September 27, 2025, when ACE manifest filings are submitted with insufficient cargo descriptions, consignee information, or shipper information, ACE will automatically reject the manifest submission and return a rejection message to the filer.

Shipments with insufficient information will be rejected and the corresponding error codes will be returned to the filer:

• 548 Invalid cargo description
• 549 Invalid shipper data
• 550 Invalid consignee data

Trade users are expected to process these notifications and work to correct the issue with the shipper and bill of lading issuer for compliance on the shipment.

For technical questions, contact the ACE Account Service Desk at 866-530-4172 or ace.support@cbp.dhs.gov.

Key to remember: Keep your loads moving at the border by ensuring accurate entries on your shipping documents.

‘State and local laws’

A violation of 392.2 is a violation of a local or state law, regulation, or ordinance. These must be obeyed due to 392.2, which reads, “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.”

The confusion is that there are no paragraphs in 392.2, so there technically should be no letters following that section. However, to inform the driver, carrier, and the Federal Motor Carrier Safety Administration (FMCSA) what particular state or local law or regulation was involved, FMCSA has developed a system of suffix codes. The letters following “392.2” – the “suffix” — show which state or local law or regulation was involved.

When one of these codes is used, the officer should include a description of the specific violation in the “violation details” area on the actual inspection report. FYI: Summary roadside inspection reports (such as the ones visible in CSA’s SMS) do not show these details.

Not all 392.2 violations are used in CSA

Not all of these state and local law or regulation violations are used by the FMCSA for scoring purposes. The Compliance, Safety, Accountability (CSA) Safety Measurement System (SMS) does not use the 392.2 violations that cannot be tied to crash causation. Here are a couple of examples: 392.2UCR Failure to pay UCR fee and 392.2W Size and weight are not used.

Most common 392.2 violations

Below are the top 10 392.2 violations written during 2021. All of these violations are safety-related, and therefore used in the CSA SMS for scoring. The BASIC within the SMS the violation is scored in is shown following the violation description.

1. 392.2SLLS2 Speeding 6-10 miles per hour over the speed limit (Unsafe Driving)
2. 392.2C Failure to obey traffic control device (Unsafe Driving)
3. 392.2LV Lane Restriction violation (Unsafe Driving)
4. 392.2SLLS3 Speeding 11-14 miles per hour over the speed limit (Unsafe Driving)
5. 392.2WC Wheel (Mud) flaps missing or defective (Vehicle Maintenance)
6. 392.2SLLS4 Speeding 15 or more miles per hour over the speed limit (Unsafe Driving)
7. 392.2ML Failure to maintain lane (Unsafe Driving)
8. 392.2SLLSWZ Speeding work/construction zone (Unsafe Driving)
9. 392.2PK Unlawfully parking and/or leaving vehicle in the roadway (Unsafe Driving)
10. 392.2FC Following too close (Unsafe Driving)

Key to remember

In general, FMCSA does not write traffic codes. They rely on local and state agencies to do that. When state or local traffic codes are violated, it appears on a roadside inspection report as a violation of 392.2, with a suffix indicating which traffic code was involved.

What you need to know about the new HOS programs

The Split Duty Period pilot program will allow drivers to pause the 14-hour driving window for no less than 30 minutes and no more than 3 hours. This allows drivers to choose to extend the 14-hour window by taking one off-duty, sleeper berth, or on-duty/non-driving period within that time limit.

Participation in this program is limited to around 256 commercial driver’s license holders who meet the eligibility criteria. Passenger-carrying vehicles aren’t eligible.

The Flexible Sleeper Berth pilot program will look to more sleeper berth split options beyond the current 8/2 and 7/3 options (e.g., splitting the 10-hour-off-duty requirement into 6/4 and 5/5/ splits). This would allow temporary regulatory relief from the regulation requiring one period of at least 7 consecutive hours in the sleeper berth.

Participation in this program is limited to around 256 commercial driver’s license holders who regularly use the sleeper berth. Participants’ data will be shared for 4 months, during which they will spend 1 month following the current regulations and 3 months under the new proposed flexibility.

FMCSA data collection

The Federal Motor Carrier Safety Administration (FMCSA) plans to study these two programs to see how they may increase flexibility in current hours-of-service (HOS) regulations.

For the first program, the FMCSA will collect data and determine whether the added flexibility has an impact on safety outcomes.

For the second program, the FMCSA will test the safety of splitting up off-duty time and explore how it may impact driver fatigue and other safety performance indicators.

Get your comments in

The FMCSA is requesting comments for these two new programs by November 17, 2025, through the Portal, by mail, by hand delivery, or via fax.

What is USERRA?

The USERRA is a federal law that protects employees’ jobs when those employees need to take time off from work to perform military duties. It protects service members' reemployment rights when returning from a period of military service, including those called up from the reserves or National Guard. It also prohibits employer discrimination based on military service or obligation.

Employees don’t have to meet any eligibility criteria before they can take military leave. They must, however, meet five criteria to return to work:

1. They must have been absent from a civilian job because of military duty;
2. They must have given their employer advance notice that they were leaving the job for military duty, unless military necessity precluded notice or it was otherwise impossible or unreasonable;
3. The cumulative period of military service while with that employer must not have exceeded five years, with some exceptions;
4. They must not have been released from the military under dishonorable or other punitive conditions; and
5. They must have reported back to their civilian job promptly or submitted a timely application for reemployment unless the timely reporting back or application was impossible or unreasonable.

Employers must return these employees to the job that they would have attained had they not taken military leave; this is known as the escalator position. Specifically, the employees are given the same seniority, status, and pay, as well as other rights and benefits determined by seniority.

USERRA also requires employers to make reasonable efforts (such as training or retraining) to enable returning servicemembers to qualify for reemployment.

If an employee can’t qualify for their previous job, the employer must reemploy them, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position.

While employees are performing military service, employers must deem them to be on a furlough or leave of absence. As such, they’re entitled to the non-seniority rights and benefits given to other similarly situated individuals on non-military leave.

Key to remember: Employers might see an uptick in employee military leave requests as those employees could need time off to serve in the military, even if that duty is within the U.S. borders.

Reasons for the Big Stay

Several factors are contributing to the Big Stay. In some career fields, there are hiring freezes, so the mobility of workers is limited. In other cases, workers who switched jobs or even careers during the Great Resignation years are now content to stay put because they found jobs for which they’re better suited.

Their moves may have resulted in significant pay raises or favorable lifestyle upgrades like shorter (or no) commutes, greater flexibility in work hours, or better benefits.

How the Big Stay benefits employers

Reduced turnover means lower costs for an employer. Turnover costs typically consist of:

• Costs to terminate (e.g., vacation payout, benefits administration, etc.),
• Costs to hire (e.g., advertising, job board fees, recruiter fees, background checks, hiring manager time, etc.),
• Vacancy costs (e.g., lost productivity, paying overtime to remaining employees, etc.), and
• Learning curve costs (e.g., knowledge gap until a new employee is fully trained and up to speed).

The Conference Board, a nonprofit think tank and business membership organization, calculated the cost of employee turnover in 2025 at $229,073 per exiting employee.

That means the Big Stay is saving employers money that would have been spent on recruiting and onboarding, but that’s not the only benefit. The Big Stay also means the collective experience of a company’s workforce is greater, which can increase productivity and ingenuity.

How to keep the Big Stay going strong

Just because employees aren’t currently job hunting doesn’t mean employers can ignore them. One reason employees choose to stay with an employer is because they:

• Believe they are valued and treated fairly,
• Have the tools and knowledge to do the job,
• Feel like they are contributing something meaningful,
• Experience positive work relationships,
• Are a part of a strong company culture, and
• See development opportunities for themselves.

To strengthen these beliefs among workers, at least some of the recouped recruitment and onboarding costs must be invested in employee engagement and development.

Resources can be redirected into:

• Training,
• Teambuilding activities,
• Internal mobility efforts,
• Career coaching,
• Mentoring programs, and
• Well-being initiatives.

The goal is to turn what may be a worker’s temporary decision to stay into true engagement by limiting the employee’s sense that they’re at risk of missing opportunities elsewhere.

Employees who feel valued and see clear career paths within an organization won’t just stay longer but will also be enthusiastic, productive, and loyal.

Key to remember: The labor force has switched gears from the Great Resignation to the Big Stay. Employers can benefit from having employees sticking around longer, but the level of benefit realized depends on how much employers put back into developing the talent of employees and strengthening the company culture.

The story

In December 2019, Jackilyn, who worked for a hospital, told Tracy, her supervisor, that she was pregnant. Tracy took Jackilyn off tasks that involved X-rays.

Early the following year, Jackilyn asked that she not be exposed to patients with infectious diseases. Her doctor was especially concerned about her potentially contracting the flu because she had severe morning sickness. The doctor’s note, however, didn’t mention severe morning sickness. In response to the note, Tracy was very upset and said that Jackilyn “was a disappointment,” “was putting a strain on their department,” and “had an unwillingness to bend.”

Later that day, Tracy apologized to Jackilyn, acknowledging that her response had been insensitive. She also said that their department was being looked at heavily for its productivity.

The financial impact of the COVID-19 pandemic prompted the hospital to lay off more than 2,000 employees. Jackilyn and another pregnant employee were among the four chosen from the department.

In choosing employees to lay off, Tracy looked at several metrics from 2019. Jackilyn and the other pregnant employee were at the bottom of the rankings for most of these metrics. Jackilyn’s layoff began about two weeks later.

Despite being on a layoff status, when Jackilyn had her baby, she was put on leave under the federal Family and Medical Leave Act (FMLA) through October 21, 2020.

On the day Jackilyn was released to return to work, Tracy learned of a job opening in another department, but she didn’t tell Jackilyn about it, despite being asked if Jackilyn, specifically, would be interested. Instead, Tracy told Jackilyn that the department’s patient volume was still too low for her to return to work, so she would be placed back on layoff status.

The case

Jackilyn was eventually terminated, and she sued, arguing that the employer violated the federal Pregnancy Discrimination Act (PDA) because Tracy chose her for layoff because of her pregnancy when she intentionally selected data to make Jackilyn appear unproductive.

Tracy’s comments in response to the doctor’s note also weighed heavily in the court, as they indicate that she was concerned about how Jackilyn’s pregnancy was affecting her department’s productivity.

She also argued that the employer violated the FMLA when Tracy didn’t tell her about the job opening in the other department. The court said that this looked like Tracy was penalizing Jackilyn for taking FMLA leave.

The court agreed with Jackilyn’s arguments, which means the case will go to a jury to decide.

Key to remember: This case serves as a good reminder for supervisors to be careful how they respond to requests for time off or accommodations. Supervisors should be trained in such matters.

Steps to take

Once employers have even a hint that an employee’s absence might qualify for FMLA leave, they should begin their FMLA steps, including giving the employee an eligibility/rights & responsibilities notice. If employees don’t initially give employers enough information, employers may ask for a complete and sufficient certification. Employers should apply the FMLA protections while waiting for a certification.

Employers need to tell employees about the potential risks of not providing a certification, and such information is included in the eligibility/rights & responsibilities notice. It is in section II of the notice and is in bold font. Employers may highlight the statement further if they wish.

Without the information in a certification, whether on a particular form or not, employers might not be able to determine whether the reason for the leave qualifies and whether to designate it as FMLA leave.

Employers aren’t required to ask for a certification, and they may not do so when leave is strictly for bonding with a healthy child. Otherwise, they’re free to ask for them.

Once employers ask employees to give them a certification, employees have 15 calendar days to provide one. If employees don’t provide one, after the 15 days expire, employers may delay or deny the FMLA protections until the employee gives them a certification.

The employee is responsible for getting a completed certification. If an ER doctor won’t complete one, for example, perhaps another treating health care provider, such as their primary care provider, will. Either way, employees must make a good-faith effort to get a certification if their employer requires one.

If an employee never gives the requested certification, and no extenuating circumstances are involved, the time off isn’t FMLA leave and shouldn’t be designated as such.

Key to remember: If employees don’t initially give enough information about an absence for employers to designate it as FMLA leave, employers may ask for a certification.

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.

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.

Key OSHA requirements

First, according to OSHA standard 1910.146(d)(9), employers must develop and implement procedures for the following:

• Summoning rescue and emergency services.
• Rescuing entrants from permit spaces.
• Providing necessary emergency services to rescued employees.
• Preventing unauthorized personnel from attempting a rescue.

This is where employers need to put on their critical thinking caps. Ask yourself: Do we have procedures for summoning rescue and emergency services? How do we rescue entrants from our permit spaces?

These conversations need to be had between the key players in your confined space operations. Supervisors, entrants, attendants, and safety personnel should develop and implement these procedures together.

Next, OSHA standard 1910.146(f) requires the entry permits to identify the following:

• The rescue and emergency services that can be summoned and the means (such as the equipment to use and the numbers to call) for summoning those services.
• The equipment, such as personal protective equipment, testing equipment, communications equipment, alarm systems, and rescue equipment, to be provided for entry and rescue.

To facilitate non-entry rescue, retrieval systems or methods shall be used whenever an authorized entrant enters a permit space unless the retrieval equipment would increase the overall risk of entry or would not contribute to the rescue of the entrant.

Next, OSHA standard 1910.146(i) lists the attendants' duties. And in terms of rescue, those duties include:

• Summoning rescue and other emergency services as soon as the attendant determines that authorized entrants may need assistance to escape from permit space hazards.
• When the employer's permit entry program allows attendant entry for rescue, attendants may enter a permit space to attempt a rescue if they have been trained and equipped for rescue operations as required by paragraph (k)(1) of this section and if they have been relieved by another attendant.
• Performing non-entry rescues as specified by the employer's rescue procedure.

And finally, OSHA standard 1910.146(k) offers guidance on designating rescue and emergency services.

Essentially, employers must evaluate a prospective rescuer's ability to respond to a rescue summons in a timely manner. They must take the specific hazards involved into consideration when determining what a “timely” rescue means.

Selecting your rescue team

Employers have two options for designating rescue and emergency services:

1. Select an “in-house” team of employees to be designated for rescue operations.
2. Work with an outside contractor or emergency response team.

If the employer chooses to use an in-house team of employees, the employer must:

• Train affected employees to perform assigned rescue duties.
• Ensure that such employees successfully complete the training required to establish proficiency as an authorized entrant.
• Train affected employees in basic first-aid and cardiopulmonary resuscitation (CPR). The employer shall ensure that at least one member of the rescue team or service holding a current certification in first aid and CPR is available.
• Ensure that affected employees practice making permit space rescues at least once every 12 months by means of simulated rescue operations in which they remove dummies, manikins, or actual persons from the actual permit spaces or from representative permit spaces.

Check out “Part 2” of this series, Confined Space Rescue (Part 2): Partnering with outside resources.

Key to remember: Employers must develop and implement rescue procedures for all permit-required confined space entry operations. Are you prepared?

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.

Engineered or not?

An engineered point is designed as an anchor. Although employers probably don’t test them after installation, they should meet OSHA’s requirements when properly installed, like a ring that bolts in place or a portable system with weights. Engineers design these systems to meet the strength requirements.

More often, employers use non-engineered or field-expedient anchors. Determining whether a proposed anchor point is strong enough usually requires an estimation. For example, many employers use steel I-beams or H-beams as part of an anchor system. This can be acceptable using an appropriate clamp or attachment, but not when simply wrapping a strap around the beam. Other structures, however, many not be strong enough.

How strong is it?

Determining the strength of the potential anchor requires an estimation because you probably won’t test it by dropping a weight. The regulation requires that the system be designed and installed by a qualified person. But what does that mean? Employers can use structural beams, even if they weren’t “installed” as anchors. However, the qualified person would evaluate the beam and other components (including the means of attachment) to determine whether the complete system is satisfactory.

For non-certified points, the qualified person might look at the anchor attachment, and even look at engineering drawings for the facility to see the grade steel used. In addition, the person might evaluate any recommendations from the fall protection manufacturer regarding compatibility.

On the other hand, employees should never use things like ladders, scaffolds, or guardrails as fall protection anchors. For working on flat roofs, some employers want to use existing structures like a flagpole or air conditioner as an anchor. Those options might be conveniently located, but they’re unlikely to qualify as acceptable as anchor points.

The best advice is to work with a fall protection supplier who can suggest options and systems that should meet OSHA’s requirements. A good supplier may also have someone on staff who is qualified to oversee the system installation.

Finally, remember that if an employee falls, the anchor will undergo considerable stress, and the employer must inspect all system components to verify that they’re still safe to use. When using expedient structures, consider the potential effects on those structures if they arrest a falling worker. Building structures might be strong enough to arrest a falling worker, but that force could compromise structural integrity.

Key to remember: An anchor point may be suitable even if it cannot withstand 5,000 pounds of force, as long as it meets the safety factor requirements.