Five key steps to an OSHA inspection

What’s happened?

A quick look at the rule’s development shows:

• 7/28/2025 — OSHA received a petition for rulemaking that covers obligations for ladder retrofits under 1910.28(b)(9).
• 9/15/2025 — OSHA posted a memo confirming it intends to eliminate 1910.28(b)(9)(i)(D).
• 12/18/2025 — OSHA sent its Walking-Working Surfaces (WWS) - Fixed Ladders proposal to the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA).
• 1/13/2026 — OIRA and OSHA met with the American Fuel and Petrochemical Manufacturers (AFPM).
• 1/21/2026 — OIRA and OSHA met with the Employers OSHA Modernization Coalition.
• 1/27/2026 — OIRA plans to meet with attorneys representing the American Petroleum Institute (API).

What did the petition request?

The seven-page petition, written by legal counsel on behalf of the AFPM, API, and American Chemistry Council (ACC), requests that OSHA:

• Withdraw the provision under the WWS standard for fixed ladders that extend more than 24 feet to be equipped with personal fall arrest systems (allowing the continued use of ladder cages or wells); or
• Grandfather fixed ladders installed before a particular date (authorizing the continued use of existing ladder cages or wells for those ladders).

Unjustified provision?

Petitioners argue that OSHA, in its 2010 proposed WWS rule, failed to:

• Take comments on the effectiveness of cages in protecting workers from falls,
• Disclose that the agency was evaluating whether to prohibit cages, and
• Give stakeholders a chance to submit evidence regarding cages.

The petition outlines the differences between the earlier proposed and final rules, noting that the 2010 proposal gave employers the choice to use any of four fall-protection types — cages, wells, ladder safety systems, or personal fall protection systems. However, the 2016 final rule gave a 2036 phase-out date for cages and wells.

The petition goes on to contend that:

• OSHA lacks sufficient evidence to justify prohibiting cages and wells;
• Data collected during the rulemaking process leaned toward preserving employer choices for fall protection; and
• Although the 2016 rulemaking preamble acknowledged the shift away from cages and wells, it did not fully discuss evidence in favor of cages and wells.

Other arguments in the petition

The petition raises several points questioning the benefits of paragraph (b)(9)(i)(D), stating that:

• In the past decade, AFPM, API, and ACC facilities have suffered only a few injuries, with no fatalities involving cages and wells;
• Cages offer passive protection, whereas ladder safety systems and personal fall arrest systems require workers to take action to comply;
• Personal protective equipment (PPE) lies at the bottom of the hierarchy of controls;
• Safety risks also exist for ladder safety systems and personal fall arrest systems; and
• Installing new ladders or retrofitting existing ones introduces hazards to those performing that work.

Finally, the petition addresses significant compliance costs, estimating several billion dollars for tens of thousands of ladders at U.S. refineries alone. Petitioners also cited additional expenses for rerating pressure vessels and engineering any process equipment changes.

What does OSHA say?

OSHA officially announced in a September 2025 memo that it is proposing to remove 1910.28(b)(9)(i)(D). The agency calls it a deregulatory action in line with Executive Order 14192. The memo reasons, “OSHA anticipates this change will allow employers to update their ladders when the ladders reach the end of their service lives, accommodating the lengthy service life of fixed ladders, while significantly reducing costs and offering greater flexibility.”

The WWS - Fixed Ladders proposal reached OIRA on December 18. OIRA typically takes 90 to 120 days for review, but recently a maximum 28-day review period for deregulatory actions was implemented. That means we anticipate OIRA will rush this proposal, so that OSHA may publish it in the Federal Register.

Key to remember

An upcoming OSHA proposal would withdraw 1910.28(b)(9)(i)(D). The rule was spurred by a petition.

What’s changing and why it matters

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

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

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

Key areas of impact

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

Steps to take now

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

Looking ahead

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

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

Proposed legislation

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

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

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

Your restroom availability affects their health

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

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

Keys to remember

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

What’s changing

Motor carriers should review the changes now to determine how they might impact their operations. Except as noted, the new rules take effect on March 23, 2026:

• Bumper labels: Motor carriers will no longer need to ensure that their vehicles’ rear-impact guards have a permanent certification label from the manufacturer. These labels often fall off or become unreadable over time, resulting in citations even when guards meet the safety standard.
• License-plate lamps: Tractors will no longer need a working rear license-plate lamp while pulling a trailer. If there’s no trailer, the light will need to be operational.
• Spare fuses (effective April 20, 2026): Drivers will no longer be required to carry spare fuses for powering required equipment. The FMCSA says today’s vehicles don’t commonly suffer from blown fuses, making the requirement unnecessary.
• eDVIRs: Though already allowed under 49 CFR 390.32, the vehicle inspection rules in Part 396 will explicitly allow drivers and motor carriers to use electronic drivers’ vehicle inspection reports (DVIRs).
• Auxiliary fuel pumps: Motor carriers will be able to use gravity- or siphon-fed auxiliary fuel pumps with tanks up to 5 gallons, mounted on the trailer and used only when the vehicle is not in motion. The rule revises 393.65(d) to reflect modern small-capacity auxiliary systems used for trailer-mounted equipment. capacity auxiliary systems used for trailer-mounted equipment.
• Fuel tank fill limit: It will no longer be a violation to use fuel tanks that can be filled beyond 95 percent of their capacity. Modern liquid-fuel tanks have vented caps that can safely accommodate a 100-percent fill, the FMCSA says.
• Liquid-burning flares: The FMCSA has removed the option to use liquid-burning flares as emergency warning devices. Drivers must use reflective triangles or solid-fuel flares instead.
• CDLs for military techs: Dual-status military technicians (as defined in 10 U.S.C. 10216) are now explicitly included in the commercial driver’s license (CDL) exemption for military vehicle operations. Previously, only National Guard technicians qualified; Air Force Reserve and Army Reserve technicians were excluded.
• Portable conveyors: Portable conveyors used in the aggregate industry and manufactured before 2010 are now exempt from the “brakes on all wheels” requirement, provided certain weight and speed limits are met.
• Tire markings: The FMCSA has clarified that its rules do not require tire load-rating markings on sidewalls. That requirement falls to manufacturers only, not motor carriers.
• Vision waivers: An obsolete grandfathering provision related to an old vision waiver study program has been removed from the regulations (391.64) in favor of today’s alternative vision standard in 391.44.
• Water carriers: The FMCSA has removed outdated references to “water carriers,” updating parts 365, 370, 379, 386, and 390 to reflect the agency’s lack of jurisdiction over maritime carriers.

More rules on the way?

Additional deregulatory actions proposed last May are still in process but are expected to be finalized soon. This includes rules to:

• Remove the need to carry a user manual for electronic logging devices (ELDs).
• Remove the requirement for drivers to self-report moving violations.
• End the requirement that carriers return completed roadside inspection reports unless requested by the issuing agency.
• Exempt certain buses and hazmat drivers from stopping at railroad crossings equipped with active warning devices (unless the devices are activated).
• Record information about accidents where medical treatment consisted only of imaging or a prescription without actual treatment.
• Delete the outdated requirement to retrofit older trailers with retroreflective tape.

Key to remember: The FMCSA has finalized 12 deregulatory actions among 18 proposed in May 2025. The changes could save time and money for both motor carriers and drivers.

How the NRII process works (and why delays happen)

Under the NRII, medical examiners must enter a driver’s exam result into the National Registry no later than the end of the next calendar day. The FMCSA then sends these results to the appropriate SDLA so the information can be posted to the CDL MVR.

The most frequent source of delays is data-entry errors in the examiner’s electronic medical card (MCSA5850). Mistakes in key identifying information — such as name, date of birth, CDL number, or state of licensure — prevent the SDLA from validating the submission. When this happens, examiners receive an email alert but must correct the error before the SDLA can receive and post the record.

The FMCSA recognized early that MVR update delays were widespread, which led to several waivers. The current waiver, effective January 11 through April 10, 2026, allows carriers and drivers to rely on paper medical cards for up to 60 days after the exam.

Best practices for drivers and carriers

Proactive steps can significantly reduce both delays and compliance disruptions. Consider implementing the following:

1. Schedule exams early.

Encourage drivers to complete their exams at least two weeks before their certification expires. Maintain internal reminders to ensure drivers promptly report exam results and share a copy of their medical card.

2. Verify license information at the end of the exam.

Ask drivers to confirm that their personal information — name, date of birth, CDL number, and licensing state — matches what appears on the medical examination report (MCSA5876). Incorrect CDL formatting continues to be one of the most common causes of the NRII upload failures.

3. Request and retain a paper medical card.

Even though examiners aren’t required to issue a paper medical card, the FMCSA recommends that they do so during the NRII transition. Drivers should receive a paper card as these are legal proof of certification for up to 60 days under the current waiver and help prevent them from being placed out of service. A copy should go in the driver qualification file to be replaced by the updated MVR within 60 days.

4. Check MVRs within 2–5 days after each exam.

Early monitoring helps identify issues while examiners may be more receptive and able to quickly correct errors.

How to troubleshoot delayed MVR updates

The FMCSA recommends following a structured, three step troubleshooting process:

Step 1: Contact the medical examiner.

Confirm that they addressed any National Registry validation errors and resubmitted the MCSA5850. This is the most common issue that’s easily resolved.

Step 2: Reach out to the SDLA’s CDL help desk.

If issues pop up, carriers and drivers should contact the CDL help desk, not the general help line. Ideally, the call should include both a knowledgeable carrier representative and the driver. Begin by explaining that the examiner has already corrected any errors. Then request that the SDLA’s medicalcertification team “pull” the record directly from the National Registry.

Step 3: Contact the FMCSA Registry Support team if needed.

If steps 1 and 2 don’t resolve the issue, carriers and drivers should contact the FMCSA Registry Support team:

Phone: (617) 4943003

Email: fmctechsup@dot.gov

If the problem still isn’t resolved, carriers and drivers should document the steps taken to show good-faith efforts were made. If the driver’s MVR doesn’t update within the waiver period, to reduce the risk of having a disqualified driver citation, carriers should consider removing them from CMV driving until the MVR updates.

Key to remember: When carriers and drivers proactively manage medical exam timing and closely track MVR updates, they are less likely to face disqualification surprises or other compliance issues.

Do exempt carriers need to have proof of insurance?

Carriers that haul exempt commodities are required to have the minimum level of financial responsibility required by 49 CFR 387, and their insurance provider must provide the carrier with an MCS-90 endorsement. However, the insurance need not be on file with the FMCSA. Many states have insurance requirements both for the amount required and the need to carry proof of coverage in the vehicle. Federally exempt for-hire carriers are not exempted from any state requirement.

Are exempt for-hire carriers required to name process agents?

Currently, exempt-for hire carriers are not required to name process agents for each state of operation as other for-hire carriers are required to do so on the BOC-3 form. That may change when the FMCSA fully implements their Unified Registration System, or URS. The system was introduced with a final rule in the summer of 2013 and included a provision requiring exempt carriers to have process agents. Much of the rule was suspended at the beginning of 2017. At some point, the agency would like to get the URS ball rolling again.

Are exempt carriers exempt from IFTA, IRP, HVUT, and UCR?

Exempt for-hire carriers are not exempt from the alphabet soup of revenue generating programs of the International Fuel Tax Agreement (IFTA) allowing for the sharing of fuel tax revenue, the International Registration Plan (IRP) allowing for the sharing of vehicle registration fees, the Internal Revenue Service’s (IRS) tax for heavy vehicles that weight 55,000 pounds or more, or for the Unified Carrier Registration (UCR) revenue generating program.

Are exempt carriers exempt from the Federal Motor Carrier Safety Regulations (FMCSRs)?

Exempt carriers are not automatically exempt from the safety regulations such as driver qualifications, drug and alcohol testing, commercial driver licenses, vehicle inspections, or the hours-of-service rules. Although livestock and agriculture commodity carriers may qualify for the hours-of-service agriculture exemption.

Key to remember: “Exempt” commodity haulers are exempt from very little. Primarily they are exempt from needing for-hire authority and designating process agents.

For-hire vs. private

For-hire carriers use vehicles to transport people or property and are paid for their service. The fee could be a direct fee like a fare or a rate but could also be other indirect forms of compensation. Examples of for-hire operations include a trucking company that hauls other people’s property for a fee (direct compensation) or a hotel that includes in its service the transportation to and from the airport to the hotel (indirect compensation).

Private carriers, on the other hand, transport only their own goods or people. Examples include a manufacturer that uses its own commercial vehicles to transport its product, a construction or landscaping company that uses commercial vehicles to transport equipment and employees to job sites, or a utility company that operates commercial vehicles in support of its operations.

For-hire operating authority

While private carriers are not required to obtain operating authority from the FMCSA, for-hire carriers are required to get authority to move property or people that belong to somebody else and get paid for their service. Having authority is often referred to as having an MC Number.

The most common types of authority are:

• Property for-hire
• Passenger for-hire
• Household goods
• Broker
• Freight forwarder

If a company never operates a commercial motor vehicle (CMV), it is possible to have authority, but not have a USDOT number. For example, straight brokers or freight forwarders.

As part of obtaining for-hire authority, carriers must designate process agents and demonstrate financial responsibility (have proper insurance coverage).

One size does not fit all

Authorities are not all-inclusive. Separate authority is needed for each type of service offered. For instance, a for-hire, over-the-road carrier that also wants to be able to resell its extra demand will need both for-hire and brokerage authorities. A company is required to pay a $300 one-time fee for each type of authority needed.

Permanent authority required

There are no temporary permits available to substitute for authority. For-hire operations may not be performed until the proper authority has been granted. It’s not uncommon for otherwise private carriers to become for-hire carriers to generate revenue on back-hauls or help balance capacity and demand during slow periods or seasons.

Getting it right

Carriers need to get it right when it comes to authority. Carriers required to have authority — but don’t and operate anyway — can get themselves into trouble. Penalties for operating without proper authority can get expensive and can result in out-of-service orders.

Obtaining a hazmat endorsement

The process for obtaining a hazardous materials (hazmat) endorsement requires a little patience and time. The process requires a driver to undergo a hazmat endorsement background check. The driver’s name and fingerprints will be sent to the Department of Homeland Security (DHS), which will make sure that the driver does not pose a security risk. Also, the driver needs to meet immigration standards and have a clean criminal and mental-health record.

The Federal Motor Carrier Safety Administration’s (FMCSA) entry level driver training (ELDT) rule took effect in February of 2022. An individual obtaining a hazmat endorsement for the first time must complete specific theory instruction prior to taking the required knowledge test. The training must be provided by a school or entity listed on the FMCSA’s Training Provider Registry (TPR).

These requirements are in place because drivers that are hauling hazmat are transporting some of the most dangerous cargo on the road. Before sending a driver through the hazmat endorsement process, you must ensure that the driver must obtain the hazmat endorsement in the first place. Did you know that hauling hazmat does not automatically mean a driver will require the hazmat endorsement?

What are the rules?

A CDL hazmat endorsement is required when a driver is hauling hazmat that must be placarded or when the driver is hauling a select agent or toxin. A CDL hazmat endorsement is not required if a hazmat load does not require placarding. The basic rule of thumb is that no placards mean no hazmat endorsement is required.

However, the hazardous materials regulations allow placarding even if it is not required, and it is called permissible placarding. In these situations, a placard would be voluntarily displayed, and no hazmat endorsement would be required.

Always plan ahead

Knowing whether a driver needs a hazmat endorsement will protect your drivers and ensure that they are compliant while transporting placarded hazmat loads.

If you’ve determined that your driver requires a hazmat endorsement, you may want to get started right away. The process for obtaining the hazmat endorsement can take several weeks. In the meantime, make sure drivers do not transport a load of placarded hazmat without the hazmat endorsement.

Key to remember: A hazmat endorsement is required when a driver is hauling hazmat that must be placarded.

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!

Case in point

In April, Toby, an employee, applied for FMLA leave for his chronic kidney stones. The certification indicated that he would need intermittent leave up to 3 times per month for 1 day per episode.

Things went fine until August 23, when Toby asked for time off. The conversation went something like this:

• Toby: Can I have a personal day tomorrow because my kids are starting a new school?
• Employer: Let me see if one’s available. It’s not available for tomorrow.
• Toby: Well, okay. I guess you’ll have to put me on FMLA leave then.
• Employer: OK, so FMLA for your kids’ school event.
• Toby: Thank you.

Toby ended up taking 4 days of medical leave.

Based on the phone conversation, the employer charged Toby with FMLA misuse and removed him from work pending an investigatory hearing.

At the hearing, Jolanda, the company’s FMLA manager, said it was clear, based on the conversation, that Toby “….marked off FMLA for an unapproved reason”—so clear that “[t]here wasn’t a need” for the company to “determine if the leave that [Toby] requested was actually used for FMLA protection or for purposes of the FMLA.”

Toby said that he needed to be off both because his kids were starting a new school and because his medical condition had started to flare up. He explained that he initially asked for a personal day, rather than FMLA leave, so he would be paid for the day and could avoid using up his FMLA time.

Toby said he saw a doctor for his flare-up and provided a doctor’s note dated August 24. The note said that Toby had been under a doctor’s care from August 24 to 27.

After the hearing (and despite the doctor’s note), the employer concluded that Toby had misused FMLA leave and fired him.

Toby sued, and the court sided with him, disagreeing with the employer’s argument that Toby had misused FMLA leave. Toby had enough evidence to establish that the employer’s decision to fire him wasn’t “reasonably informed and considered….”

The employer’s only basis for believing Toby misused FMLA leave was his phone call. The call didn’t conclusively establish that Toby engaged in misconduct, especially given his testimony that he needed to deal with both medical needs and family obligations. The doctor’s note also provided evidence that Toby’s request for leave was legitimate.

Pack v. CSX Transportation, Inc.; Southern District of West Virginia; No. 3:24-0688; January 14, 2026.

Key to remember: Employers should look at all the facts of a situation before concluding that an employee abused FMLA leave.

Balancing safety concerns and limits

When employers have safety concerns about an employee, they may ask the employee medical questions, but there are limits.

According to the Equal Employment Opportunity Commission, which enforces the employment provisions of the ADA:

• Employers must limit the scope of the inquiry to what is necessary to determine the employee’s ability to perform essential job functions or to assess the need for a reasonable accommodation.
• The employee must authorize any direct communication with their health care provider (think HIPAA).

What is a direct threat?

A direct threat is something that poses a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. To determine whether an employee poses a direct threat in the workplace, employers should consider the following factors:

• The duration of the risk,
• The nature and severity of the potential harm,
• The likelihood that potential harm will occur, and
• The imminence of the potential harm.

If, for example, an employee operating a forklift appears sleepy, the employer may tell the employee to get off the forklift and discuss the situation. The employer could discover that the employee is sleepy because:

• They had a late night out with friends,
• A colicky baby kept them up, or
• A drug or medication (legal or not) made them sleepy.

Employers shouldn’t jump to conclusions, but rather, document all related discussions and actions taken.

No hiding under a blanket

Blanket policies that require all employees to disclose all the medications they’re taking risk violating the ADA, because policies like that don’t focus on a particular employee, as required.

Employers with blanket policies should review them to make sure they aren’t adding risk.

If another federal law, such as the Federal Motor Carrier Safety Act and its regulations, requires such medical questions, the ADA doesn’t stand in the way. If the laws don’t require the questions, the ADA steps in.

Key to remember: Unless required by another federal law, asking all employees to disclose the medications they take would risk violating the ADA.

Later update than usual

The EO 13658 minimum wage is adjusted annually for inflation, and a notice announcing the increase is typically published in the Federal Register around September 30.

This year the notice was published more than 3 months later than usual on February 9, pushing back the effective date of the rate increase.

Covered contractors

The increase applies to any contracts subject to the Davis-Bacon Act and the Service Contract Act that were entered into between January 1, 2015, and January 29, 2022, and not renewed or extended on or after January 30, 2022.

While the DOL notes that the number of contracts covered by EO 13658 has significantly decreased over the past several years, it anticipates that there are some existing contracts that remain subject to the executive order’s minimum wage requirements.

Executive Order 14026

Contracts signed after January 30, 2022, were covered by Executive Order 14026, which called for an initial minimum wage of $15 per hour that increased with inflation. In 2025, that rate was $17.75 per hour.

EO 14026 is no longer being enforced, however, as it was rescinded in March 2025 by another executive order, “Additional Rescissions of Harmful Executive Orders and Actions.”

Poster update

Covered contractors are required to post the Worker Rights Under Executive Order 13658 poster. The DOL indicates that a poster reflecting the new rate will be publicly available on the Wage and Hour Division website but has not said when it will be ready.

After the updated poster is released, covered contractors need to display the revised version showing the new rate.

Key to remember: Federal contractors covered by Executive Order (EO) 13658 will need to pay a minimum wage of $13.65 per hour and a tipped minimum wage of $9.55 per hour as of May 11. They will also need to display an updated minimum wage poster.

Eligibility/rights and responsibilities notice

The first deadline is activated when an employee notifies the employer (e.g., supervisor, HR manager, etc.) of the need for leave. The employer then has five business days to give the employee an eligibility/rights & responsibilities notice.

If the information in this notice changes, the employer has to tell the employee in writing within five business days after the employee first asks for leave again. The new notice should mention the old notice and explain what has changed. If, for example, the first part of leave was paid and the next part is unpaid, the employer needs to explain how to make premium payments.

Employers may include a certification along with the employee's eligibility/rights & responsibilities notice. Absent extenuating circumstances, the employee must complete and return the certification within 15 calendar days.

So, how soon after an employee requests leave do employers have to request a certification?

In most cases, employers should request a certification when an employee gives notice of the need for leave or within five business days. If the leave is unforeseen, such as a medical emergency, employers should request a certification within five days after the leave begins.

Designation notice

Once the employer has enough information (often from a certification) to determine if the employee’s leave qualifies for FMLA job protections, the employer has five business days to give the employee a designation notice (i.e., written approval or denial of the leave).

Similar to the eligibility/rights and responsibilities notice, if the information provided in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement), the employer must inform the employee of the change within five business days.

Key to remember: Failure to meet the FMLA’s five-day deadlines for giving employees notices can risk a claim that the employer violated the employee’s FMLA rights.

Employer injury/illness reporting

OSHA has limited ability to focus inspection and compliance efforts where they’re most needed because it has not effectively enforced its mandatory injury and illness reporting requirements for employers, the report contends. In fact, a September 2023 OIG audit found that on average, between 2016 and 2020, nearly 60 percent of establishments in all industries failed to report their annual injury and illness data to OSHA.

The report went on to say that:

• OSHA could not identify if an establishment met the reporting criteria. This meant the agency could not effectively cite employers for non-compliance or proactively remind specific establishments that they must report.
• Employer under- and non-reporting produces an incomplete view of workplace injury and illness. This, in turn, makes it difficult for OSHA to identify high-risk establishments to target.

Since the 2023 report, OSHA’s Tracking rule took effect January 1, 2024, with an added reporting category — establishments with 100 or more employees in industries designated as very high-risk. These establishments must submit data from the Forms 300, 301, and 300A annually. OSHA explains that it has updated its data collection capabilities. This includes new applications to analyze individual case reports of establishment-specific data.

The Inspector General report urges OSHA to complete its initiatives to improve employer reporting of injuries and illnesses. Meanwhile, each year, OSHA publicly posts employer injury and illness data reported under 1904.41.

Fewer inspectors, fewer inspections

Reaching millions of worksites is an ongoing challenge because the number of federal inspectors is going down, not up, DOL OIG charges, citing 846 in February 2024 and 736 in June 2025. Along with its state partners, in 2026 OSHA will have approximately 1,720 inspectors, or about one inspector for every 84,000 employees. Inspector numbers may continue to decline due to retirements, resignations, and other reductions.

The Inspector General puts it bluntly, “A lack of available inspectors can lead to fewer inspections, diminished enforcement in high-risk industries and ultimately, greater risk of fatalities, injuries, or compromised health for workers.”

It should be stated that fiscal year (FY) 2026 appropriations were approved and signed into law on February 3, 2026. The latest funding is: $243,000,000 for federal enforcement and $120,000,000 for OSHA State-Plan states.

• These numbers are unchanged from FY 2025 for federal OSHA enforcement, but slightly higher for state plans. While the funding is not lower than previous years, inflation limits how far OSHA can go with its dollars. Unchanged funding doesn’t necessarily translate to keeping the same number of inspectors.

Workplace violence

Although fatalities due to workplace violence plummeted about 13 percent from 2022 to 2023, workplace violence remains a top five leading cause of employee death, according to OIG. OSHA doesn’t have a standard addressing this issue but has relied instead on the General Duty Clause (GDC) for enforcement since 1993.

The agency must consider actions to address and prevent workplace violence, the Inspector General stresses. Such actions may include a rulemaking. OIG announced plans to perform an audit to determine the effectiveness of the GDC in OSHA’s enforcement efforts, including workplace violence.

Last summer, OSHA slid its Workplace Violence in Health Care and Social Assistance proposed rulemaking to the long-term regulatory agenda items without explanation. Any upcoming OIG results showing the GDC is ineffective for workplace violence may pressure OSHA to issue a regulation and/or fast forward its existing proposal.

The latest OIG report is not the first time the watchdog has recommended OSHA do something about workplace violence. It was noted in a November 2023 report, and an entire September 2001 report was devoted to the issue. Additionally, a 2016 Government Accountability Office (GAO) report outlined “additional efforts” OSHA should take to protect healthcare workers from workplace violence.

Two workplace violence bills currently in Congress would call on OSHA to take action on the issue. See 9 OSHA bills to mandate gap-closing rules, wider coverage, steeper fines.

Key to remember: A recent OIG report addresses what it calls OSHA’s most pressing challenges — annual injury/illness reporting, fewer inspectors, and workplace violence — and what the agency must do going forward to meet them.

Inspection failure

If the operator skips or rushes through the pre-shift inspection, safety concerns could get overlooked. Problems with systems like hydraulics, brakes, or steering can obviously contribute to accidents. However, even things like a non-functioning horn or lights could increase the likelihood of collisions.

Also, operators must report any problems that arise during the shift. If a pre-shift inspection identifies failures, the problem likely occurred during the previous shift and perhaps could have been reported. Equipment failures more likely occur during operation, not during idle time between shifts. If something goes wrong mid-shift, the operator must remove the truck from service. Make sure operators know how to report problems, send the truck for service, and obtain an alternate vehicle for the remainder of the shift.

Carrying loads too high

Operators should carry loads as low as possible. During inspections, OSHA compliance officers commonly see loads carried too high. This limits both visibility and stability. When the load size restricts visibility and the truck cannot travel in reverse (like going up a ramp), the operator should use a spotter.

Similarly, operators must never raise or lower a load while moving or turning. Doing so increases the risk of accidents from falling loads. Also, driving while watching the load (not the road) can increase the risk of striking pedestrians or objects.

Driving too fast

Employers might communicate speed limits, but most forklifts don’t have speedometers. Therefore, operators should understand what constitutes safe (and unsafe) speeds under various conditions. In locations with pedestrians or limited visibility, this might mean at walking speed, which can seem painfully slow.

OSHA compliance officers can issue citations for excessive speed. Excessive speed increases the risk of spilling a load, striking a pedestrian, and rollover potential.

Not certified for truck type

Forklift operators must receive training that covers the types of vehicles used. An operator trained on a sit-down counterbalanced forklift needs additional training to operate a stand-up model or even a powered pallet jack. A supervisor might be able to explain the controls for a different vehicle type, but that does not constitute “training” and certainly not certification. OSHA commonly issues citations for lacking operator certification.

In addition, employers must evaluate each operator’s performance every three years. Typically, this involves questioning the operator on safety rules and observing the operator performing typical duties. If the evaluation identifies problems, the employer must provide refresher training. Skipping this evaluation could result in a failure to identify violations that contribute to accidents.

An operator who is not certified for the vehicle type may lack understanding of critical handling characteristics or safety precautions, which increases the risk of accidents.

Key to Remember: When forklift operators feel under time pressure, they might focus on speed over safety. Skipping the inspection, driving too fast, raising loads while moving, and other behaviors put the operator and other employees at risk.

Starting the year in the wrong direction

On January 10, 2026, a Michigan tow truck helper who was standing at the rear of their truck cab became pinned between the rollback flatbed carriage and the cab, suffering a fatal head injury. Preliminary findings show that after unloading a vehicle, the flatbed was being returned to its original position when unexpected resistance was encountered. Later, the helper was found on the ground and was pronounced deceased at the scene.

Six short days later in New Hampshire, a pickup truck operator struck a worker while reversing their vehicle on a worksite. Life-saving measures were attempted by emergency responders; however, the struck worker died because of injuries suffered in the incident.

While investigations into both fatalities are still underway, they serve as sobering reminders that workplace tragedies can occur regardless of vehicle direction or speed, underscoring the importance of maintaining rigorous work zone safety practices.

Reversing fatal facts

According to the National Work Zone Safety Information Clearinghouse, fatal highway worker injuries involving workers on foot struck by vehicles have increased by 10.7 percent since 2021. From 2021 to 2023, these incidents accounted for an average of 53.5 percent of all fatal highway worker deaths. In 2023 alone, more than 800 people were killed in work zone crashes, and over 37,000 were injured.

The data drives home the concept that work zone safety is moving in the wrong direction, making it critical for organizations to strengthen controls, improve visibility, and reinforce safe work practices. While work zone incidents remain a serious challenge, employers can reduce risk by applying data‑driven practices, proven countermeasures, and structured hierarchical control strategies, including:

• Prioritizing worker participation in identifying hazards and evaluating/implementing control options;
• Analyzing crash and trend data to target safety strategies and guide interventions;
• Addressing commonly cited OSHA violations to close work zone safety gaps before injuries or fatalities occur;
• Implementing safety countermeasures such as speed management tools, enhanced roadway delineation, improved lighting, pedestrian protections, and median barriers;
• Coordinating with engineers, traffic control companies, equipment manufacturers, and law enforcement to establish effective communication and staging strategies;
• Maintaining a written hazard control plan that includes emergency and non-routine operations;
• Evaluating the effectiveness of controls and adjusting when needed.

Key to remember: Work zone injuries are increasing; therefore, every vehicle movement, no matter the direction, must be controlled using engineering controls, data-informed decisions, worker participation, and consistent hazard management.

Topics and worker types covered

Topics addressed by these Congressional bills include musculoskeletal disorders, heat stress, infectious diseases, wildfire smoke, and workplace violence. Federal OSHA does not have comprehensive standards for any of those hazards. Some existing standards are related — sanitation, first aid, personal protective equipment, and injury/illness recordkeeping and reporting.

Without comprehensive standards, OSHA may turn to enforce these hazards under the General Duty Clause (GDC), Section 5(a)(1) of the Occupational Safety and Health Act. Yet, the GDC poses a high bar for inspectors. OSHA can only cite under Section 5(a)(1) if the alleged hazard: exists, is recognized, is serious, and has a feasible means to reduce that hazard.

If any one of the four criteria is missing, a GDC citation will not hold. On the other hand, putting a standard in place both mandates protections and makes it much easier for OSHA to cite employers for the hazards.

Worth noting, some of the bills specifically cover domestic workers, firefighters, warehouse workers, public sector workers, and healthcare and social service workers.

Nine bills to watch

Below is a list of the nine pieces of legislation (and companion bills) currently under consideration in this 119th United States Congress:

• LET’S Protect Workers Act, H.R. 6597 — Introduced 12/10/2025. This bill would raise civil monetary penalties for employers that violate occupational safety and health requirements. Willful and repeat violations would jump to $800,000 each. The bill would also direct OSHA to close a loophole that prevents citations for failing to maintain required injury and illness records if the violation is not discovered within six months. Instead, every day an employer fails to make or maintain a record during the five-year record retention period would be a violation.
• Domestic Workers Bill of Rights Act, S. 3396 and H.R. 3971 — Introduced 12/9/2025 and 6/12/2025, respectively. This bill would require a board to make recommendations to OSHA for standards that affect the well-being of domestic employees, including infectious diseases protections.
• Healthy Lungs for Heroes Act, S. 3183 — Introduced 11/18/2025. This bill would require OSHA to develop an appropriate exposure limit for wildfire smoke for wildland firefighters and supporting staff where current PELs are not a good fit for wildfire situations. The bill would also require the incorporation by reference of a National Fire Protection Association standard on respirators for wildland fire-fighting operations.
• Warehouse Worker Protection Act, H.R. 4896 and S. 2613 — Introduced 8/5/2025 and 7/31/2025, respectively. This bill would require OSHA to publish a standard for ergonomic program management with elements including hazard identification, job evaluations, hazard control, training, and medical management. The bill also calls for OSHA to publish a standard on first aid and employer-provided occupational medicine consultation services. Finally, it would update the Occupational Safety and Health Act (OSH Act) so a contest notice would not stay abatement of a violation.
• Asunción Valdivia Heat Illness, Injury, and Fatality Prevention Act, H.R. 4443 and S. 2298 — Both introduced 7/16/2025. These bills would require OSHA to promulgate a standard to protect workers from heat-related injuries and illnesses. Such a standard may have measures like engineering controls, administrative controls, personal protective equipment, medical and emergency protocols, training, and a written plan.
• Recognizing that climate change poses a growing threat to public health and necessitates coordinated action to mitigate its impacts and safeguard the health and well-being of all people in the United States, H.Res. 568 and S.Res. 318 — Both introduced 7/10/2025. These bills say that OSHA “should” promulgate a worker heat protection standard that, in accordance with the best available evidence, establishes the highest degree of health and safety protection feasible.
• Protecting America’s Workers Act, H.R. 3036 — Introduced 4/28/2025. This bill would require OSHA to update its incorporations by reference of national consensus standards, with some exceptions. The bill makes other changes to the OSH Act to expand coverage to public sector workers, increase protections, and raise penalties.
• Safe Workplaces Act, H.R. 2647 — Introduced 4/3/2025. This bill taps OSHA to issue nonmandatory guidance on activities and work practice controls that can be implemented at work to reduce workplace violence.
• Workplace Violence Prevention for Health Care and Social Service Workers, H.R. 2531 and S. 1232 — Both introduced 4/1/2025. These bills mandate OSHA to issue a standard that requires covered employers within the healthcare and social service industries to develop and implement a comprehensive workplace violence prevention plan. The plan must include procedures and methods for risk assessment and identification of risks, hazard prevention and controls, reporting and investigation, emergency response, and training.

Key to remember

Several bills in the 119th Congress would modernize the OSH Act and mandate OSHA rulemaking to strengthen or increase worker protections.