Expert Insights: You can’t outsource your compliance obligations

What’s a WCPP?

When specific uses of chemical substances (i.e., conditions of use) in an occupational setting may pose unreasonable risks of injury to employees or the environment, Section 6 of TSCA requires EPA to develop regulations that reduce or mitigate those risks. The agency implements WCPPs to address the risks.

A WCPP requires covered entities to take certain actions in the workplace that shield individuals who engage with the conditions of use from inhalation and/or dermal risk.

Who’s subject to a WCPP?

The requirements of a WCPP may apply to entities that manufacture (including import), process, distribute in commerce, use, or dispose of a TSCA-regulated chemical substance.

The WCPP program extends beyond those who directly handle a regulated chemical substance to anyone in the workplace who’s exposed or who could be exposed to it (e.g., employees, independent contractors, volunteers, etc.).

What are the components of a WCPP?

A WCPP generally consists of multiple elements:

• Exposure limits, such as Existing Chemical Exposure Limits (ECELs), set the amount or concentration of a chemical substance that can be in the air.
• ECEL action levels establish airborne concentration limits that, if exceeded, activate additional requirements (like more frequent monitoring).
• Exposure monitoring measures and compares air concentration levels to the exposure limits.
• Regulated areas establish where airborne concentrations of the chemical substance are above or have a reasonable possibility to go above exposure limits. Facilities limit access to these areas to control exposure.
• An Exposure Control Plan documents the selection and implementation of controls used to reduce exposure. It's developed according to the hierarchy of controls, which mandates that the most protective actions used to reduce hazardous exposures be considered first. The general order is elimination, substitution, engineering controls, administrative controls, and then personal protective equipment (PPE) use.
• Dermal and inhalation control measures may consist of direct dermal contact control measures (like removing the chemical substance at the source before a worker encounters it) and PPE use (such as requiring workers to wear chemical-resistant gloves or use respirators when handling the chemical substance).
• Training applies to workers who are or could be exposed to the chemical substance and typically covers multiple elements of the WCPP (work processes, proper PPE use, and exposure controls, for example).
• Recordkeeping demonstrates compliance with the WCPP. Facilities usually have to maintain records of monitoring results, Exposure Control Plans, regulated areas and those authorized to use them, training, and PPE programs.
• Downstream notifications alert others in the supply chain of WCPP requirements. Manufacturers, processors, and distributors generally provide the required information on a chemical substance’s Safety Data Sheet.

Know the chemical-specific requirements

If your facility is subject to a WCPP, it’s essential to know the regulations that apply to the specific chemical substance. The chemical’s rule will define the conditions of use to which the WCPP applies and may contain different or additional requirements. Also, state or local regulations may have stricter rules that dictate how (and if) your facility can use the chemical substance.

Key to remember: Facilities that use TSCA-regulated chemical substances may have to comply with EPA’s workplace chemical protection program to protect workers and other exposed individuals from unreasonable health risks.

Can a motor carrier retest anytime they want?

Only specific scenarios identified in 49 CFR Part 40 require or permit recollections. They include negative dilute and invalid laboratory results.

A motor carrier can’t perform a second collection to nullify a prior test result. If the medical review officer (MRO) reported a drug test violation, there was an official result. A new drug test will not erase the violation.

Negative dilute scenarios

One of the more common reasons for recollection is a negative dilute result for a urine specimen.

The negative dilute will fall into one of two scenarios:

1. The creatinine concentration of the specimen is greater than or equal to 2mg/dL but less than or equal to 5mg/dL. The MRO will instruct the designated employer representative (DER) to send the driver for an immediate recollection with minimum possible advance notice. The test is performed under direct observation.
2. The creatinine level of the specimen is greater than 5 mg/dL. The MRO will report the result as negative dilute with no instructions. The DER takes one of two actions:
   1. Requests a retest under company policy. This test is also immediate with minimum possible advance notice, but it can’t be under direct observation. The company’s policy must indicate which test types are subject to the retest (e.g., random, post-accident, pre-employment).
   2. Accepts the result as negative because the company policy doesn’t dictate a new collection.

Drivers must know the policy when testing under #2-a prior to the original collection, and the policy must be enforced consistently by the motor carrier.

The second test result becomes the test of record. If the second sample is reported as negative dilute, the result is considered negative at this point. The DER can’t request yet another test.

However, another test could be required as the result of a recollection under #2-a (employer test) if the lab finds the creatinine level greater than or equal to 2mg/dL but less than or equal to 5mg/dL. The MRO will direct the DER to request a third urine specimen (this time under direct observation). This test becomes the test of record, and the process doesn’t go further even if it comes back negative dilute.

Invalid test result

An invalid drug test result occurs when the laboratory finds a substance is interfering with the immunoassay test on the specimen.

After the MRO is notified of the results, the MRO contacts the driver as part of the verification process. The MRO is looking for a medical explanation and/or valid prescription that might be the cause. If the driver is unable to provide a valid explanation, the MRO:

• Cancels the original test,
• Communicates the invalid result to the DER, and
• Directs the DER to immediately send the driver for second collection under direct observation.

The motor carrier must ensure that the driver has minimum possible advance notice when told to go to the collection site. The second test result becomes the test of record.

What if the driver won’t go for the recollection?

It doesn’t matter whether it’s an MRO-mandated retest or employer-based retest for a negative dilute, failing to go for testing after notification is a refusal to test. The DER reports these events to the CDL Drug and Alcohol Clearinghouse as violations.

It’s important to note that recollections apply to pre-employment drug tests too. If you look at 40.191(a)(6), declining to take another test has no protection for those taking pre-employment drug tests.

That said, the prospective employer must notify the driver applicant and arrange a convenient time. This might prove difficult if the driver is working another job. The DER must take into consideration any extenuating circumstances that delay testing, rather than automatically deeming it a refusal to test. DERs always have discretion.

If the driver-applicant refuses to go for the second test altogether (e.g., no longer interested in the job), that’s a much different story than having scheduling conflicts. It’s a refusal to test.

When testing under the carrier’s authority as the result of a negative dilute, it’s important to carefully communicate which test types are covered in the policy. It’s especially important for pre-employment testing, so applicants know expectations.

Key to remember: Retesting helps rule out drug use, and the DOT requires another trip the clinic for a second specimen under specific scenarios.

What is the NSC?

In 1987, the federal, provincial, and territorial Ministers responsible for Transportation and Highway Safety recognized that due to the deregulation of transportation, there was a need for harmonization and reciprocity in the management of commercial vehicles across Canada. The ministers then signed a memorandum of understanding to develop and implement the NSC to encourage road safety, promote efficiency in the motor carrier industry, and achieve consistent safety standards. The National Safety Code standards remain important instruments of public policy in promoting public safety and the safe and efficient movement of people and goods on Canadian roads.

What are the 16 standards?

The NSC is a set of minimum performance standards, applying to all persons responsible for the safe operation of commercial vehicles. There are 16 NSC standards made up of the following:

• Standard 1 Single Driver Licence Concept
• Standard 2 Knowledge and Performance Tests (Drivers)
• Standard 3 Driver Examiner Training Program
• Standard 4 Driver Licencing Classification
• Standard 5 Self-Certification Standards and Procedures
• Standard 6 Determining Driver Fitness in Canada
• Standard 7 Carrier and Driver Profiles
• Standard 8 Short-Term Suspension
• Standard 9 Commercial Vehicle Drivers Hours of Service
• Standard 10 Cargo Securement
• Standard 11 Maintenance and Periodic Inspection
• Standard 12 CVSA On-Road Inspection
• Standard 13 Trip Inspection
• Standard 14 Safety Rating
• Standard 15 Facility Audits
• Standard 16 Entry Level Training (Class 1)

Now that we have a better understanding of what the NSC represents and what the 16 standards are, let’s take a deeper dive into the standards that apply, starting with Motor Carriers.

NSC Standard 14 — Safety Rating

You might be wondering why we are starting with Standard 14. All provinces in Canada are required to issue an NSC number to all commercial carriers in their governing jurisdiction. A Safety Fitness Certificate (SFC) contains the NSC number, which is the unique identifier for each commercial operator. Ontario calls this number a Commercial Vehicle Operator’s Registration or CVOR.

If you have registered a vehicle that is regulated under the National Safety Code program in Canada, you are required to apply for a SFC or CVOR (Ontario). The SFC or CVOR gives you permission to operate a commercial vehicle.

There have been many new changes recently to the process of not only applying for an SFC but also in maintaining the required certificate. For example, in Alberta, it includes completing an NSC knowledge test online or NSC in a registry office, completing an NSC audit within 12 months of obtaining your SFC, and renewing your certificate every three years.

A provincial authority may not issue a safety fitness certificate to an extra-provincial motor carrier undertaking unless the provincial authority has determined that the undertaking has a “satisfactory”, “satisfactory unaudited” or “conditional” safety rating, as set out in section 5 of Part C of NSC Standard #14.

Safety Rating Categories

Responsibility for motor carrier safety resides, first and foremost, with motor carrier management. The Safety Rating Standard (Standard 14) establishes the motor carrier safety rating framework by which each jurisdiction shall assess the safety performance of motor carriers. There are four safety rating categories as follows:

• Using the information in the motor carrier profile;
• Assigning a value to each of the data listed in the motor carrier profile taking into account its severity and potential safety impact, in accordance with the National Safety Code Standard 7, Carrier Profile:
  • For the 24 months preceding the determination; or
  • In the case of a motor carrier whose motor carrier profile was established less than 24 months prior to the determination, for the period since its establishment;
• Normalizing the weighted data using the motor carrier’s fleet size to reflect the motor carrier’s exposure to risk; and
• Assigning a safety rating to the motor carrier in accordance with the safety rating categories.

The NSC’s safety fitness rests on three building blocks:

• NSC Standard 7: Carrier and Driver Profiles
• NSC Standard 14: Safety Rating
• NSC Standard 15: Facility Audit

Together, these standards provide the safety rating and management framework by which each jurisdiction assesses the safety performance of motor carriers. In part 3, we’ll cover Standards 7 and 15 in greater detail.

Key to remember: We have just touched the surface of the NSC standards and covered likely one of the most important when it comes to maintaining a safe rating and compliance with Jurisdictional regulations.

What is personal conveyance?

The personal conveyance exception allows a driver to use a CMV for personal reasons while off duty, essentially using a CMV for errands or travel. This would be something they would typically do with their personal vehicle, if it were available. When considering whether PC is appropriate for the movement of the vehicle, a driver must consider these four requirements. If the move does not meet all four requirements, it is not PC.

• Does the carrier have a policy authorizing PC?
• Is the driver legitimately off duty during the move?
• Is the destination purely personal?
• Is there any benefit to the carrier? This includes ending up in a better position as far as the current or next assignment.

When a driver is confident the move meets all four requirements, the driver can use PC for the move.

Proper use of personal conveyance

Drivers who are permitted to use PC must be relieved from duty before they can use this exception. Examples of proper usage are:

• Traveling from a truck stop to a restaurant or hotel.
• Commuting between home and the driver’s terminal.
• Driving to the nearest safe place to rest after loading or unloading.

There are many other examples of proper use. Each move should be assessed on a case-by-case basis.

Prohibited use of personal conveyance

Examples of movements that would not qualify as PC are:

• Bypassing an available rest location to get closer to a delivery or pick-up location.
• Time spent transporting a CMV to a maintenance facility.
• Time spent traveling to a carrier’s terminal after loading or unloading.

Common questions

Many drivers find themselves non-compliant because they do not fully understand these requirements. Below are some common questions.

• Can a driver stop at a restaurant for dinner and log off duty for the day, eat dinner, and drive to the truck stop at the same exit using PC?
  • Because the driver intends to end the workday at the truck stop, the driver cannot use PC to get there. The driver would be in compliance if they had gone to the truck stop, logged off duty, then used PC to travel to and from dinner.
• If a load is not available for a driver, can they use PC to travel several hundred miles home?
  • While there is no time or mileage limit on PC at this time, a driver cannot use PC to place the truck or driver in a better position for the next load. Most carriers would load a driver as close as possible to the current location. Since it is not likely that the driver would return to the location the PC began for the next load, PC is usually not appropriate for this move.
• Can a driver use PC to go to a store to get food and other personal items?
  • A driver is permitted to use a CMV to go anywhere they would go in a personal vehicle, as long as the move is strictly personal. The driver cannot be purchasing items for the carrier and must not move the CMV closer to the next pick up or delivery, unless they return to the starting location at the end of the personal move.

Key to remember: PC is a tool a driver can use to complete personal tasks, but care should be taken to ensure the move is purely personal to avoid fines and penalties.

The story

Victor, the driver, obtained his Federal Motor Carrier Safety Act (FMCSA) variance in 2015. After receiving the paperwork documenting his medical clearance, Victor enrolled in a driver training school owned by the employer. Through this, Victor received over-the-road training from a trainer with the help of an interpreter, who communicated with him from the backseat of the vehicle throughout the process. After completing the program, Victor obtained his commercial driver's license and applied for an over-the-road driving position with the company.

About a week later, Erin, the company recruiter, emailed Victor, asking him to call that afternoon to speak with Jamie, the company’s Vice President of Safety and Compliance. Erin participated in the call, introducing Victor to Jamie. Jamie proceeded to ask about Victor’s ability to safely operate a truck and the previous accommodations he had received regarding the over-the-road training.

After discussing Victor’s previous accommodations, Jamie told him, “No, I’m sorry, we can’t hire you because of your deafness,” and ended the call.

The claim

The federal Equal Employment Opportunity Commission (EEOC) then sued the company on Victor’s behalf, alleging that it violated the ADA when it failed to hire him because of his deafness and need for a reasonable accommodation.

The employer claimed that all deaf drivers posed a direct threat to others on the road because of their condition. The employer, however, failed to individualize the direct threat analysis as to Victor, precluding it from establishing that defense. The employer also tried to claim that an accommodation would pose an undue hardship, but it expressly disclaimed any financial burden imposed by accommodating Victor and didn’t point to any reason why accommodating him would fundamentally alter its entire business, not just the training program.

The employer argued that it didn’t choose to hire Victor because he was deaf, but because of a consequence of his deafness. The court didn’t buy this. It held that there was no meaningful difference between taking an adverse action because of the job performance consequences of a disability rather than the disability itself, because the alleged consequences described Victor’s disability.

The ruling

The court found that the employer indicated that Victor wasn’t qualified for the truck driver position because he was deaf, and it provided no other reason as to why it didn’t hire Victor.

In addition to the monetary impact of the employer’s actions, it has to keep a record of any deaf truck driver applications with FMCSA exemptions and report those records to the EEOC no less frequently than every six months for three years.

EEOC v. Drivers Management, LLC; Werner Enterprises, Inc., Eighth Circuit Court of Appeals, No. 24-2286, July 10, 2025.

Key to remember: Dismissing an applicant based on a generalized safety theory can risk an expensive disability discrimination claim.

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!

Temporary Waiver

Because of delays in updating driver records, the Federal Motor Carrier Safety Administration (FMCSA) issued a waiver effective July 14 through October 12, 2025. This lets CDL/CLP drivers use a paper copy of their medical card for up to 15 days after their exam and allows:

1. CDL and CLP drivers to show proof of medical certification while driving, and
2. Carriers to keep the medical card in the driver’s file until the motor vehicle record (MVR) updates.

NRII state updates

As of July 28, 2025:

• 38 states have switched to NRII.
• 12 states have not.

States with transition target dates include:

• Florida – September 2025
• Iowa – October 19, 2025
• Kentucky – June 2026
• New York – February 2026
• Wyoming – Late 2025

Alaska, California, Louisiana, New Hampshire, New Jersey, Oklahoma, and Vermont don’t have transition target dates yet.

What to do if the MVR is not updated

If the medical exam information does not show up on the driving record within a couple of days:

• Ask the examiner to check for error messages in their Registry account and resubmit the information. Make sure they have the driver’s correct name, birth date, state, and license number.
• Contact the driver’s state driver licensing agency (SDLA) CDL Help Desk to confirm the update. Ask the SDLA to pull the information from the Registry if necessary.
• As a last resort, contact Registry support:
  • Email: fmctechsup@dot.gov
  • Phone: 617-494-3003
• Drivers should not operate a commercial motor vehicle if their MVR shows the driver as “not certified” and it is more than 15 days after the medical exam date. Enforcement could site the driver and place them out of service.

Some misinformation is going around. Here are the facts:

• Drivers do not need a new exam just because the certification information did not transfer—unless the exam was falsified or the examiner was not on the Registry.
• Changing the driving tier (like Interstate or Intrastate excepted or non-excepted) is the driver’s job, not the SDLA.
• Some examiners are charging extra to send the information to the state. This should not be due to the new process alone. They have been entering exam information in the Registry since 2015.

Key to remember: Monitor driver medical certification issues closely and take corrective action immediately to avoid CDL driver out of service violations.

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.

AI speeds things up

Government policy is not the only reason more workplaces are hearing from ICE. Artificial intelligence (AI) models that can draw trends from numerous data sets, including Forms I-9, E-Verify data, and wage and tax information, make ICE enforcement more efficient.

“We will see more notices of inspection and fines because AI can do it faster,” said Mazzeo, who spoke at the 2025 Society for Human Resources Management (SHRM) annual conference.

Agents who previously relied on intuition and a phone book when selecting businesses for audits and worksite enforcement now have advanced AI tools at their disposal. A workplace may be targeted because of its prior violations, industry, geographic location, or job type.

Paying the price

Immigration enforcement can lead to fines for employers as well as workplace disruptions. Noncompliance can result in fines of:

• $288 to $2,861 for paperwork violations for each Form I-9
• $716 to $5,724 per worker for knowingly hiring, recruiting, referring, or retaining unauthorized workers (first offense)
• $5,724 to $14,308 per worker for knowingly hiring, recruiting, referring, or retaining unauthorized workers (second offense)
• $8,586 to $28,619 per worker for knowingly hiring, recruiting, referring, or retaining unauthorized workers (third or subsequent offense)

In addition, employers can face criminal sanctions and may be removed from the E-Verify program, which is required for federal contractors.

What happens tomorrow?

To mitigate penalties and ensure they can continue to operate, employers need to think about what it would mean if ICE appeared on their doorstep.

In terms of business continuity, they not only need to consider the raid itself, Mazzeo said, but what happens the next day. The question, he noted, becomes, “How do I operate tomorrow?”

It’s not only the business visited by ICE that may lose workers. Workplaces near a business that has been targeted, or those in a similar industry, may also experience the loss of workers who are afraid to come to work.

6 tips to cope with continuity challenges

To continue to operate in an era of increased immigration enforcement, Mazzeo advises employers to prepare with these six steps:

1. Understand your risk profile.
2. Have a Form I-9 policy and determine what steps to take when an individual cannot establish work authorization.
3. Subscribe to legal updates.
4. Audit your process, from job posting through termination.
5. Understand your workforce. Determine which employees could become ineligible for work authorization. Start the renewal process early, as documents may be susceptible to production delays, and have a plan if work authorization is lost.
6. Determine how your organization would handle an immediate or sudden loss of noncitizen employees.

Key to remember: Employers need to understand how an emphasis on immigration enforcement impacts their workforce and create a plan for continuing to operate if their workers are impacted.

FMLA paperwork rules

One of the first steps for employers is to determine whether employees meet the eligibility criteria to take FMLA leave. The next step is to inform employees by giving them an FMLA eligibility/rights and responsibilities notice within five business days. Employers might also give employees:

• The company's FMLA policy,
• An FMLA leave request form,
• A letter explaining the FMLA process, and
• A copy of the FMLA poster.

But wait! Where is the certification form? Since the leave would be protected by the FMLA, shouldn’t a certification form be included?

While there are several FMLA certification forms, none exist for adoption or otherwise bonding with a healthy child. Unless the child has a serious health condition, there should be no certification form required for adoption.

FMLA certifications exist for an employee’s own serious health condition, that of a family member, a qualifying exigency (military family leave), a caregiver of a current military member, and a caregiver of a veteran military member.

The Department of Labor’s Wage and Hour Division indicates in a fact sheet that:

“The employer may not request a certification for leave to bond with a newborn child or a child placed for adoption or foster care.”

Since there is no serious health condition and no family military leave involved, there would be no one who would complete a certification.

What to request

This doesn’t mean that employers are left with nothing. Employers may request reasonable documentation or a statement of a family relationship. This may take the form of a simple statement from employees or court documents.

Employers are entitled to examine official documents, but they must return them to employees.

Generally, employees get to choose what to give to employers. Employers may require employees to put their statements in writing.

Employers may have forms for this, and those forms may include language such as: “By signing this form, the employee understands that any misrepresentations made in the statement, or any other misrepresentation related to this FMLA request, may result in the denial of the request and discipline per company policy.”

The form can also certify, via employee signature, that all the statements made are true and accurate to the best of the employee’s knowledge.

Key to remember: Employers may not ask for a certification supporting FMLA leave taken for adoption, but may ask for documentation or a statement of the family relationship.

Employer reporting requirements

Employers will need to report the total amount of qualified overtime compensation on their employees’ Forms W-2. They will also need to report the amount of qualified overtime compensation for non-employees (e.g., independent contractors) on the applicable Forms 1099, even though the FLSA only applies in employer/employee relationships, generally.

To accomplish this reporting, employers must:

• Identify and calculate qualified overtime above the regular rate required by the FLSA, and
• Separate the overtime amounts.

Employers may approximate an amount designated as qualified overtime compensation by any reasonable method specified by the Treasury Secretary for the 2025 tax year.

The Internal Revenue Service (IRS) will provide employers with more details in the future, including updated procedures and related forms to reflect this new deduction. The IRS is also tasked with crafting rules to prevent abuse of this deduction. Intentional or not, potential missteps, like reclassifying employee salaries as overtime, could trigger FLSA or IRS audits.

The deduction doesn’t apply to overtime premiums that aren’t required by the FLSA. This could include pay under a contract, for example, like those found in collective bargaining agreements.

States often have their own overtime rules. Federal deductions don’t override state obligations, so employers will still need to be aware of related state laws. The federal deduction won’t apply to overtime that is required only under state law.

Employees might have questions

Employers that get questions from workers can share the following information:

• Effective for tax years starting January 1, 2025, workers may deduct overtime from their taxes.
• Only the required overtime premium (i.e., half the regular rate of pay) under the federal FLSA qualifies. The deduction cap is:
  • $12,500 for those filing as single, and
  • $25,000 for those filing jointly.
• The cap is reduced by $100 for every $1,000 of modified adjusted gross income above $150k for single filers and $300k for joint filers. The deduction doesn’t affect Social Security and Medicare taxes.

To prepare for this change, employers might want to:

• Review their payroll systems to ensure proper tracking and separate reporting by January 2026.
• Train payroll and HR staff on the new line-item requirements in Forms W2 and 1099.
• Inform employees about what qualifies for the tax break and how deductions affect their withholding and take-home pay.

Key to remember: Employers must prepare for the new reporting requirements under the “no tax on overtime” provisions of the OBBBA.

#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.

What’s behind OSHA’s proposed changes?

OSHA developed the Respiratory Protection standard at 1910.134 in the 1990s. Back then, the use of medical evaluations was a well-accepted best practice to identify underlying conditions where respirator use of any kind could cause adverse health or functional effects. Based on studies and comments OSHA received when developing the standard, the agency concluded that the use of any respirator requires a prior medical evaluation to determine a worker’s physical fitness.

Fast forward 30 years, OSHA says it now believes that this approach is too broad in practice for several reasons:

• There are no large-scale epidemiological studies that assess how effective medical evaluations are for workers who wear FFRs or loose-fitting PAPRs.
• Despite large spikes in respirator usage during COVID–19, no evidence has surfaced illustrating the need for medical evaluations for FFR and loose-fitting PAPR use.
• Data reported in the final rule for Respiratory Protection in the late 1990s found that 2 percent or fewer workers did not pass the medical evaluation. That proportion is fairly consistent with more recent studies. This means not that many workers are refused respirators following a medical evaluation.
• Workers are able to respond quickly when symptoms arise. In the rare circumstances that a worker develops symptoms from wearing an FFR or loose-fitting PAPR, they’re not immediately dangerous to life or health (IDLH) situations. This is because FFRs and loose-fitting PAPRs are not permitted to protect workers in IDLH environments.
• Available data mainly shows minimal impact on health. While self-contained breathing apparatus (SCBA) respirators require a great deal of exertion given their weight, existing literature shows that any physiological effects from wearing much lighter FFRs and PAPRs are minimal during low to moderate exertion. OSHA believes this would be typical of the vast majority of workplaces.

Agency seeks feedback on proposed rule

OSHA seeks feedback on all aspects of the July 1, 2025, proposed rule. However, particular key points are of interest to the agency:

• The extent to which medical evaluations are effective at preventing adverse health outcomes resulting from the use of FFRs and loose-fitting PAPRs,
• The extent to which workers have worn FFRs and loose-fitting PAPRs without medical evaluations since the emergence of COVID-19 in 2020,
• How many adverse events are being avoided by restricting the use of FFRs and loose-fitting PAPRs by workers, and
• Whether the proposed changes impose additional or more stringent requirements than the existing standard.

Even if the rule is finalized, state-plan states may keep their existing medical evaluation requirements; OSHA seeks comment on this, too.

Interested parties may comment by September 2, 2025. Search for OSHA-2025-0006 at regulations.gov to read and enter public comments. If an informal public hearing on the proposed rule is requested by the September 2 deadline, OSHA will schedule one and announce it in the Federal Register. 

Note that 1910.134 is a general industry standard. Yet, OSHA recognizes that if the revisions become final, they would also impact the construction and maritime industries. That’s because the standards for those industries reference 1910.134. See 1926.103 (construction), 1915.154 (shipyards), 1917.92 (marine terminals), and 1918.102 (longshoring).

Key to remember: Under a recent proposed rule, OSHA would remove the medical evaluation requirement for workers who are required to use FFRs and loose-fitting PAPRs. Stakeholders have until September 2 to comment on the proposal.

What are MSDs?

OSHA defines MSDs as disorders of the muscles, nerves, tendons, ligaments, joints, cartilage, and spinal discs. Examples include:

MSDs are prevalent in the workplace. The Bureau of Labor Statistics reveals in its latest data for 2021 and 2022 that MSDs accounted for 22 percent of all injuries/illnesses with days away from work in the U.S. This figure doesn’t include countless MSDs without days away.

Rule’s history

The timeline for this rule spans almost 30 years. Major highlights include:

Why OSHA originally wanted the column

According to the agency, an MSD column:

Latest decision

The 2010 proposal would have amended the OSHA 300 Log by adding a column that employers would use to record work-related MSDs. On July 1, 2025, OSHA withdrew that proposal.

The move does NOT change employer obligations to complete and retain occupational injury/illness records under OSHA's regulations. Terminating the proposal also does not change the recording criteria. OSHA’s 29 CFR 1904 remains as-is, and work-related MSDs must be recorded as usual.

Why the withdrawal?

OSHA explains that its authority to issue an MSD column rule stemmed from sections 8 and 24 of the Occupational Safety and Health Act. These sections empower the agency to issue regulations “necessary or appropriate” to carry out its responsibilities. This includes regulations that ensure employers keep accurate injury/illness records.

OSHA now officially concludes that an MSD column rule would NOT be reasonably related to sections 8 and 24 of the Act. The agency has determined that the record does NOT demonstrate that an MSD column would:

• Significantly improve the national injury/illness statistics — While the MSD column would help to estimate the number of non-days-away MSDs, OSHA claims that data from the column would add only marginally to the information already available.
• Be necessary to assist OSHA in enforcement and outreach — The column offers nothing of significance that goes beyond the case description data, the agency contends. Knowing the total number of MSDs at an establishment would be of little practical value in identifying hazards or causes of MSDs in the workplace, OSHA says.
• Provide useful information to employers and workers at the establishment level — The column does not offer the nature or cause of the disorders, and the total number of MSDs is easily obtainable without the column, argues OSHA.

Key to remember

OSHA withdrew the proposal to amend the OSHA 300 Log by adding a column that employers would use to record work-related MSDs.

Can we use rope or chain as fall protection on loading docks?

Yes, if you install it correctly. Most docks are four feet or higher and require fall protection if the door is open without a trailer in place. Rope or chain must be equivalent to a guardrail, which requires a top rail and mid rail. A single chain is not acceptable.

Per 1910.29(b), the material must be at least one-quarter inch in diameter. The top rail must be 42 inches high, plus or minus 3 inches, for a range of 39 to 45 inches. The top rail cannot sag or deflect to within 39 inches of the surface under 200 pounds of force, and should be tight enough to prevent a worker from falling between the chains and the dock edge.

Are wheel chocks required at loading docks?

Employers must use some method to prevent the trailer from moving. OSHA gives examples of wheel chocks, but other options can work, such as dock locks. Even if the dock ramp is inclined downward, OSHA still requires chocks.

Note that OSHA’s directive STD 01-11-007 uses the term “mechanical means” instead of the term “dock locks.” Also, a Letter of Interpretation dated March 7, 2011, clarified that the Federal Motor Carrier Safety Administration (FMSCA) provision for relying on trailer brakes applies only to employers that are motor carriers. Other employers must ensure that forklift operators secure the trailer from movement before entering.

Do fixed ladders need cages?

Fixed ladders over 24 feet high that were installed prior to November 19, 2018, must have a personal fall arrest system, ladder safety system, cage, or well per 1910.28(b)(9)(i)(A). Employers must update those ladders with a fall arrest or ladder safety system by November 18, 2036.

OSHA previously required cages or wells on fixed ladders over 20 feet but removed that requirement in 2017. Employers often install cages on ladders under 24 feet for various reasons, such as limiting access, but OSHA does not require this. For related information, see our article, Planning fixed ladder fall protection upgrades.

Can we use designated areas on flat roofs?

A personal fall arrest or travel restraint system is required for work within 6 feet of the edge, but a designated area can be an option for work further from the edge. It can be used on low-slope roofs in two situations:

1. If the work will be at least 6 feet (but less than 15 feet) from the edge, a designated area may be used if the work is infrequent and temporary, such as changing an air conditioner filter once per month.
2. If employees will be working 15 feet or more from the edge, a designated area may be used even if the job will take several days or weeks.

Surprisingly, if employees will be at least 15 feet from the edge and the work qualifies as infrequent and temporary, no fall protection is required (not even a designated area). OSHA offered clarification on the terms “infrequent” and “temporary” in a Letter of Interpretation dated June 12, 2020.

Key to remember: The fall protection requirements in the Walking-Working Surface regulations raise many questions, but OSHA has published some clarifying guidance.

Choosing the correct year

The NAICS codes get updated every five years, with 2022 as the most current. Adding confusion, different OSHA regulations use different versions of the codes. For example:

• Employers trying to determine if they’re exempt from keeping a 300 Log under 1904.2 must use the 2002 codes.
• Employers trying to determine if they must submit injury data to OSHA by March 2nd must use the 2017 codes (OSHA updated from the 2012 codes as of January 1, 2024).

Searching codes online may default to the 2022 version, and some codes changed. For example, the 1904.41 appendix lists 4529 for “Other general merchandise stores” which covers retail outlets like dollar stores and variety stores. However, searching that code in the 2022 list shows “no result” since that number changed. The 2022 NAICS code for general merchandise stores is 4552, but that code does not appear in OSHA’s appendix. Employers using the 2022 NAICS codes may incorrectly believe their establishment is not on OSHA’s list.

Employers can search older versions of the NAICS codes at https://www.census.gov/naics/ which also indicates whether a particular code has changed in more recent versions.

Choosing the correct code

In addition to using the NAICS list for the correct year, employers must choose the correct code for each establishment. If a location engages in more than one type of business activity, employers must choose only one NAICS code for OSHA recordkeeping. OSHA says to choose the code for the activity that generates the most revenue or has the most employees.

In some cases, employers can divide a single physical location into more than one “establishment” as defined in 1904.46. To split a single location into multiple establishments, all of the following must apply:

• Each establishment represents a distinctly separate business;
• Each business engages in a different economic activity;
• No single NAICS code applies to the joint activities at the establishments; and
• Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information.

For example, OSHA noted that if an employer operates a construction company at the same physical location as a lumber yard, the employer may consider each business as a separate establishment.

For employers with multiple establishments, the NAICS code for each location should reflect the primary business activity at each establishment. For example, a manufacturing company might have a separate administration office. Using a manufacturing code for the office might not be appropriate, even though it supports the other manufacturing locations. However, NAICS codes starting 5511 for “Management of Companies and Enterprises” might apply.

For example, code 551114 gives examples as follows:

• Centralized administrative offices
• Head offices
• Corporate offices
• District and regional offices
• Subsidiary management offices

That might better describe a corporate administrative office, if the location does not have any warehousing or manufacturing operations. In fact, codes starting 5511 appear on OSHA’s list of establishments under 1904.2 that are exempt from keeping a 300 Log, so applying the correct code could mean that office doesn’t need a 300 Log at all.

Counting employees

Finally, counting employees gets confusing because some OSHA regulations require counting all employees in the company (combining all locations) and others require counting only the employees at each establishment.

• Section 1904.1 allows an exemption from keeping a 300 Log if the entire company has 10 or fewer employees, combining all establishments.
• Section 1904.2 allows an exemption from keeping a 300 Log based on the NAICS code for each location, regardless of the number of employees at the location.
• Section 1904.41 requires establishments in listed NAICS codes to submit injury data to OSHA annually, but only if the establishment (not the entire company) falls within an employee count range. Establishments with fewer than 20 employees need not submit even if the NAICS code appears in OSHA’s list.

Key to remember: NAICS codes update every five years, and employers must use the correct list, which may differ in various regulations.