Make the most out of employee performance evaluations

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.

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.

Be ready, look ready

Looking prepared goes well beyond having a solid lesson plan. It’s about presenting yourself in a way that builds confidence before the session begins.

• Dress neatly and professionally to reinforce your credibility and show that the training matters.
• Bring enough handouts for every driver, plus a few extras.
• Arrive early to organize your materials, gather your thoughts, and welcome participants as they arrive.
• Make sure that all your electronic or technical equipment is set up and functions properly.

Start on time

Beginning your session at the scheduled time sends a clear message. It conveys that the training is important, and so are your drivers’ schedules. Starting late can frustrate those who arrived early or on time and can diminish your credibility before the session even begins. A timely start keeps the group focused and ready to learn.

Open with purpose and perspective

Begin each session by helping drivers understand the purpose of the training and why it matters.

To craft an effective introduction, put yourself in your drivers’ place. If you were attending the session, what would you want to know about it before starting? Framing the session from the drivers’ perspective creates early engagement and helps participants see the session’s value.

Set the tone

A lack of enthusiasm can quickly drain energy from a training session, no matter how strong the content. Displaying confidence and passion for the topic demonstrates your belief in its importance. When drivers see that you care, they’re far more likely to stay engaged.

End on time

Running beyond the scheduled end time can make drivers restless and reduce the impact of your session. Plan to finish about 10 minutes early. This gives you flexibility for discussion, clarifications, or final questions, while still honoring everyone’s time. A timely wrap up helps ensure your session ends with clarity and confidence.

Key to remember: Applying these five core practices sets the foundation for efficient training sessions that keep drivers engaged and deliver lasting results.

A growing threat to motor carriers

Motor carriers nationwide are being urged to stay alert as FMCSA reports a surge in deceptive emails crafted to look like legitimate government communication. These messages frequently include professional looking documents, official appearing logos, and language that mirrors real FMCSA notices. While they may appear authentic, they are engineered to harvest personal data, financial information, or login credentials that can compromise a carrier’s operations.

FMCSA has emphasized that these emails do not originate from USDOT or the agency itself. One of the most reliable warning signs is the sender’s email domain. Official FMCSA correspondence almost always comes from an address ending in .gov. Although there are rare exceptions, such as customer satisfaction surveys sent after contacting the FMCSA Contact Center, those messages never request personal, financial, or account information.

How scammers create a false sense of urgency

Industry reports note that the sophistication of these phishing attempts has increased significantly. Many messages convey a sense of urgency, warning recipients that their USDOT number is at risk, that compliance updates are overdue, or that immediate payment is required to avoid penalties. These tactics are designed to pressure carriers into responding quickly without verifying the source.

FMCSA stresses that it never demands payment or sensitive information through unsolicited email. Any message requesting such information should be treated as a scam.

Key warning signs to watch for

Motor carriers can protect themselves by watching for several common red flags:

• Non-government email domains or sender addresses that appear slightly altered;
• Unexpected requests for payment, especially those tied to threats or deadlines;
• Embedded links directing users to unfamiliar login pages;
• Attachments that claim to be compliance documents or renewal notices; and
• Spelling or formatting inconsistencies, even in otherwise professional looking messages.

Protecting your business from phishing attempts

To reduce the risk of falling victim to these scams, FMCSA recommends that carriers:

• Verify the sender’s domain before responding to any message;
• Avoid clicking links in unsolicited emails, especially those requesting payment or personal data;
• Log in directly to official FMCSA or USDOT portals rather than using email links; and
• Report suspicious emails to the appropriate fraud reporting channels.

As phishing schemes continue to evolve, awareness remains the strongest defense. Carriers who stay informed, verify communications, and follow FMCSA’s recommended precautions can significantly reduce their risk. 

Key to remember: In an industry where compliance and safety are paramount, protecting your business from fraud is just as critical as protecting your fleet or cargo.

Road test options

Carriers can take one of three approaches to road testing:

1. Use one of the two federal exceptions allowed under §391.33 instead of giving a road test,
2. Meet the minimum federal road test requirements under §391.31, or
3. Go beyond the minimum standards by using road test best practices.

Caution: Using a road test exception can weaken a carrier’s defense in post-crash litigation. Courts often view exceptions as a shortcut or a missed opportunity to identify risk.

Why exceed the minimum testing requirements?

Evaluating driver skills at the time of hire and on an ongoing basis helps carriers:

• Lower crash risk and legal exposure; and
• Improve driver retention by building skill and confidence.

Today, juries and federal auditors expect carriers to meet — and often exceed — minimum standards, not just comply with them. Exceeding the minimum road test requirements strengthens both safety and defensibility.

10 road test best practices

If these ten steps aren’t already part of your policies, consider adding the following best practices to your driver testing program:

1. Test drivers on a single road course that includes the required elements in §391.31(b) and matches the driver’s expected vehicle and operating environment.
2. Use a standardized scoring sheet that allows evaluator comments.
3. Do not use the §391.33 exceptions instead of giving a road test.
4. Require evaluators of commercial driver’s license (CDL) drivers to hold a CDL, in case they need to operate the vehicle.
5. Document why each evaluator is qualified, such as through an appointment letter.
6. Review evaluators regularly to ensure consistent scoring and reduce bias.
7. Explain the test process to the driver before starting, and limit instructions and comments during the test to avoid distractions.
8. Provide and document remedial training to address any weaknesses found during the road test — even if the driver passes.
9. Conduct road tests after a driver is hired and before key changes, such as:
   • Returning from a long absence;
   • Moving to a new vehicle or operation;
   • Driving in winter or mountainous conditions; or
   • Becoming a driver trainer.
10. Never pass a driver just to meet operational needs. The risks of skipping key steps in the testing process can lead to violations, potential litigation, and safety issues.

Keys to remember: To reduce risk, do not settle for minimum standards. Strong road test practices improve safety, support drivers, and protect the company.

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.

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.

Why the proposed change?

The DOL states that the proposed rule is “consistent with Supreme Court and federal circuit court precedent.”

“The rule we are proposing today is not only based on long-standing legal principles used in federal courts across the country but also is aimed at ensuring that workers and employers know how to apply those principles predictably,” said WHD Administrator Andrew Rogers in a press release. “The department believes that streamlined regulations in line with Congress’s intent when it passed the Fair Labor Standards Act would improve compliance, reduce misclassification, and reduce costly litigation in an economic environment that needs flexibility and innovation.”

The proposed rule would also apply the DOL’s streamlined analysis to the Family and Medical Leave Act and the Migrant and Seasonal Agricultural Worker Protection Act, both of which use the Fair Labor Standard’s Act’s (FLSA) statutory definition of “employ.”

How do the new standards differ from the Biden-era standards?

If passed into law, the 2026 proposed rule would:

• Apply an “economic reality” test to determine whether a worker is in business for himself or herself as an independent contractor or is an employee economically dependent on an employer for work.
• Identify and explain two “core factors” to help determine if a worker is economically dependent on an employer for work or in business for him- or herself:
  • The nature and degree of control over the work.
  • The worker’s opportunity for profit or loss based on initiative and/or investment.
• Identify other factors to help determine a worker’s status as an employee or independent contractor, including the amount of skill required for the work, degree of permanence of the working relationship, and whether the work is part of an integrated unit of production.
• Advise that the actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
• Provide eight fact-specific examples applying the factors to real-life circumstances.

The 2026 proposed rule is similar to the 2021 version which was finalized (but never took effect) at the end of President Trump’s first term, in that it leans heavily into the concept of an “economic reality” test, which analyzes if a person is financially dependent on an employer. If they are, then they’re an employee. The 2021 version also zeroed in on “core factors,” and a person’s opportunity for profit or loss, and the degree of control they have over their work.

The 2024 version under President Biden (which is currently still in effect today) focuses more on the “totality of the circumstances” when classifying workers. It looks at the whole picture and allows all factors to be weighed equally, with no predetermined weight assigned to a particular factor or set of factors. Instead, it uses a 6-part multifactor approach to classifying workers. These six factors include:

1. Opportunity for profit or loss depending on managerial skill.
2. Investments by the worker and the potential employer.
3. Degree of permanence of the work relationship.
4. Nature and degree of control.
5. Extent to which the work performed is an integral part of the potential employer’s business.
6. Worker’s skill and initiative.

Don’t these rules seem similar?

While the details of these rules might seem similar on the surface, the current 2024 rule makes it harder for employers to classify workers as independent contractors, which means companies must hire workers as employees, making them eligible for minimum wage, overtime pay, and other benefits that come with regular employment.

The crux of the 2021 and 2026 rules is that they allow a little more wiggle room for companies to classify workers as independent contractors, and, therefore, avoid having to comply with certain employment laws, like paying minimum wage.

Didn’t the DOL already rescind this rule?

Not officially, but in May 2025, the DOL issued a Field Assistance Bulletin to provide guidance to WHD field staff, and indirectly employers, about how to determine if someone should be classified as an employee or an independent contractor for purposes of FLSA compliance.

In a press release from May, the DOL said they were reviewing the 2024 independent contractor rule that went into effect during President Biden’s term.

Field staff were instructed not to apply the 2024 rule when investigating and enforcing FLSA employment matters. Instead, staff was to look back to the 2008 independent contractor rule, focusing on “economic realities” similar to the 2021 and 2026 versions.

What should businesses be doing in light of this new guidance?

For now, businesses should still follow the guidance from the 2024 Biden-era independent contractor rule, because that’s still in effect.

Employers should ensure they’re complying with all federal, state, and local employment laws, especially when it comes to properly classifying workers as either employees or independent contractors. Also, workers may not voluntarily waive their employee status and choose to be classified as independent contractors.

Even if the WHD field staff isn’t using the 2024 version, it’s still technically the law of the land. Nothing’s changed with the existing regulations relating to employee classification (or misclassification) but has more to do with how the WHD is allocating enforcement resources during the review of the 2024 rule. The 2024 rule will still be the basis of any private litigation.

No posting change expected

This rule isn’t expected to bring a mandatory change to the Employee Rights Under the Fair Labor Standards Act posting. The posting does mention independent contractors, but doesn’t include a detailed definition. Previous changes to the independent contractor rule haven’t brought about a mandatory FLSA posting change.

In addition, the proposed rule doesn’t mention a posting change and doesn’t include the cost of a posting change in the rule’s cost analysis.

Key to remember: The U.S. DOL announced plans to rescind the Biden-era federal independent contractor rule from 2024 through a formal rulemaking process.

How to handle FMLA leave with rehired employees

How employers should handle a rehired employee’s FMLA leave depends on how long the employee was away.

For starters, employers must include all the time the employee worked for the company, and see if it amounts to at least 12 months in total. Again, those months don’t have to be consecutive.

Employers don’t have to include any time worked after an employee’s been gone from the company for more than 7 years, with some exceptions:

• The break was because of the employee’s military leave under the federal Uniformed Services Employment and Reemployment Rights Act; or
• A written agreement, including a collective bargaining agreement, exists concerning the employer's intention to rehire the employee after the break in service (e.g., the employee goes back to school or takes time off to raise children).

Employers also must determine whether a rehired employee has done at least 1,250 hours of work in the 12 months before leave begins.

To illustrate

Because knowing the FMLA rules around a rehired employee can be challenging, here’s an example to help employers:

Joe Employee worked for “ABC Company” for 5 years before he left for a job at another company. After a year, that company went through some restructuring, and Joe was laid off. He reapplied at “ABC Company” and was rehired.

Seven months later, Joe found out he was going to be a father and asked for FMLA leave when the baby would be born in three months.

Since Joe worked for “ABC Company” for well over 12 total months (5 years originally; 10 months as a rehire when the baby is born and leave would begin), he would be eligible for FMLA leave when the baby is born (assuming he performed at least 1,250 hours of work by then).

State leave laws

Some state leave laws, particularly paid leave, have specific provisions entitling rehired employees to jump back on the leave train where they left off. Employers must be aware of such provisions if they have employees who work in those states.

Key to remember: Whether rehired employees are eligible to take FMLA leave depends on a number of factors, including how long they were gone and why.

FMLA and weight loss surgery

When it comes to weight loss surgery, an employee may have been perfectly healthy before the procedure, so the surgery itself might not be required due to the employee’s health reasons. An employee might, however, have underlying health conditions prompting the procedure.

It’s true that conditions for which cosmetic treatments are given (such as most treatments for acne or certain types of plastic surgery) are not serious health conditions unless inpatient hospital care is needed or complications develop. This caveat generally points to the definition of a serious health condition (inpatient care or continuing treatment). Therefore, if the treatment results in a serious health condition, it qualifies for FMLA protections.

The bottom line is, if you have an employee who needs time off for weight loss surgery that requires an overnight stay in a health care facility, the reason for the absence would qualify for FMLA protections. If the employee is incapacitated for more than three days and receives treatment twice, the reason would also qualify for FMLA protections.

What to do

As with any type of FMLA case, if an employee puts you on notice of the need for leave for elective surgery, including weight loss surgery, treat it as you would any other notice of the need for leave. Provide an eligibility/rights and responsibilities notice, and request a medical certification.

The certification should give you the information needed to determine if the employee has (or will have) a serious health condition.

If the certification indicates that the employee has not had or does not need an overnight stay, move on to whether the employee will be incapacitated for more than three days and will need continuing treatment. Continuing treatment would need to involve treatment at least once, followed by a regimen of continuing treatment (such as a prescription or therapy), or treatment at least twice.

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.

Background

The FY 2026 OSHA budget bill was signed into law on February 3, 2026. It covers funding through September 30, 2026. As has been the case for decades, lawmakers slipped in a rider with OSHA enforcement exemptions and limitations. One of those is for employers with no more than 10 employees in a “low-hazard industry.”

OSHA is not allowed to use federal dollars to “administer or enforce” any regulation under the Occupational Safety and Health Act (OSH Act) for qualifying employers, except for assistance, training, studies, and actions related to:

• Imminent dangers,
• Health hazards,
• Fatalities,
• Incidents with two or more hospitalizations, and
• Worker complaints.

Unless there’s a complaint, imminent danger, fatality, or two or more hospitalizations, it means OSHA cannot conduct programmed inspections for “safety hazards” at qualifying sites. Programmed inspections are sometimes called targeted or planned inspections. They include national, regional, and local emphasis programs; inspection scheduling for construction; the site-specific targeting program; and the severe violator enforcement program.

Rider applicability criteria

According to CPL 02-00-170, the small employer/low-hazard industry rider applies only if both of the following criteria are met:

• An employer has 10 or fewer employees currently and has not had more than 10 employees at any time during the previous 12 months; and
• The DART rate for the employer's industry is currently below the national DART average, per the most recently published labor statistics.

OSHA sources say the number of employees is not for a company but for a single location. Even large companies with 10 or fewer employees at a site will discover that the location comes under this loophole if its sector is exempt.

Qualified employer locations must still comply with applicable OSHA regulations, however. For example, under 29 CFR 1904.39(a)(3), employers covered by the OSH Act must report to OSHA any work-related incident that results in a/an:

• Fatality,
• In-patient hospitalization,
• Amputation, or
• Loss of an eye.

Once one of these reports is received, the agency determines if an “unprogrammed” inspection or investigation will be conducted.

Low-hazard industries and OSHA EEL webpage

The new table itemizes 489 North American Industry Classification System (NAICS) codes for industries that qualify for limited OSHA enforcement activities opened on and after January 22, 2026. The 489 figure is a slight increase from 485 industry codes identified back in November 2024.

The industries on the latest list had a DART rate below the national average of 1.4 per 100 full-time equivalent workers in 2024. That average comes from 2024 incidence rate data recently published by the Bureau of Labor Statistics.

Because injury and illness rates shift annually, OSHA’s lineup of low-hazard industries changes with them. In fact, OSHA made more than 100 additions and over 100 deletions with the February 2nd memo. Your industry may or may not be shown in any given year.

If your industry tends to jump on and off the listing, you may wish to monitor the OSHA Enforcement Exemptions and Limitations Under the Appropriations Act webpage — call it the OSHA EEL webpage for short. It provides links to the current and historical memos, as well as the CPL.

OSHA inspector instructions

Complete instructions for OSHA officers on how to handle the rider are found in CPL 02-00-170. Yet, a few practical instructions are shared in the memo, and these relate to:

• Construction inspections and exempted and non-exempted contractors,
• Not proposing citations for an inspection that was conducted when the employer is later found to be immune from that inspection, and
• Rescinding erroneously issued citations.

Note that the CPL features not only inspector procedures and clarifications but also 18 frequently asked questions and a link to the OSHA EEL webpage.

Key to remember

OSHA posted its FY 2026 low-hazard industries table based on the average DART rate for 2024. It helps agency inspectors sort out which establishments with a workforce of 10 or fewer employees qualify for certain enforcement exemptions and limitations.

Why DES slips under the radar

DES has a quantity of uncomfortable symptoms like dry or irritated eyes, blurred vision, headaches, neck pain, and even double vision. These symptoms can be signals of significant eye fatigue. The reason DES remains an "invisible epidemic" in many workplace safety discussions is due to a few factors:

• Non-Acute nature: Unlike a sudden injury, DES symptoms develop gradually. Employees might attribute discomfort to lack of sleep, allergies, or general stress rather than prolonged screen time.
• Lack of formal reporting: There isn't a standardized protocol for reporting "tired eyes" or "mild headaches" as a workplace injury, leading to under-reported statistics.
• Perceived normalcy: Many assume eye discomfort is an inevitable part of office work, normalizing symptoms that should be addressed.
• Focus on physical hazards: Traditional workplace safety prioritizes tangible physical risks, often overlooking ergonomic and visual health factors associated with digital work.

A 2025 Workplace Vision Health Report from VSP Vision Care shows just how impactful Digital Eye Strain can be. According to the report, nearly six in ten employees say digital eye strain negatively affects their productivity and effectiveness on the job. About half report that it diminishes their overall well-being and leaves them too tired to enjoy time outside of work and makes them more irritable throughout the day. Even more concerning, 27 percent of employees have taken time off due to eye strain.

How companies can integrate DES awareness

Luckily, there are prevention methods. Raising awareness and prevention of DES can be done by:

• Promoting the "20-20-20 Rule": This simple yet powerful rule is a cornerstone of DES prevention. Every 20 minutes, employees should look at something 20 feet away for at least 20 seconds. This helps relax the focusing muscles of the eyes and reduces dryness. Companies can implement gentle reminders through desktop pop-ups or shared calendar events.
• Self-Assessment Checklists: Provide employees with simple checklists to evaluate their own workstation ergonomics (screen distance, lighting, chair height).
• Invest in Eye-Friendly Tech: Encourage the use of anti-glare screen filters, adjustable monitor arms, and high-resolution displays. Offer or subsidize computer glasses designed to filter blue light and enhance contrast.
• Optimal Lighting: Educate employees on the importance of ambient lighting that minimizes glare on screens and avoids harsh overhead lights.
• Encouraging Regular Eye Exams: Promote the value of annual eye exams. Many DES symptoms can mimic or worsen underlying vision problems that only a professional can diagnose. Emphasize that these exams are not just for vision correction but for overall eye health monitoring.

Keys to remember: By proactively addressing Digital Eye Strain, companies don't just reduce discomfort; they invest in a more focused, productive, and healthier workforce.

What is “chip guarding”?

“Effective chip guarding” means any method or equipment which will prevent a chip or particle (of whatever size) from being blown into the eyes or unbroken skin of the operator or other workers.

Effective chip guarding may be separate from the air nozzle as in the case where screens or barriers are used. The use of protective cone air nozzles are acceptable in general for protection of the operator, but barriers, baffles or screens may be required to protect other workers if they are exposed to flying chips or particles.

What about the psi requirement?

The regulation requires the psi at the nozzle to be less than 30 when using compressed air for cleaning.

However, OSHA has said in interpretive guidance that the use of compressed air for cleaning purposes at pressures at or greater than 30 psi is permissible if the outlet or source is fitted with a relief device or air ports that drop the pressure to less than 30 psi if the flow is dead-ended.

What about cleaning clothing/bodies?

While the regulation does not specifically address the issue, in a letter of interpretation OSHA said that employers should not allow employees to use compressed air for cleaning themselves or their clothing in general industry situations. The eyes and other body parts, such as the respiratory system, may be damaged as the result of inadequate personal protective equipment, lack of chip guards, and/or uncontrolled release of compressed air.

The dangers

There are numerous dangers of improperly using compressed air:

• Embolism: If compressed air enters the bloodstream through a body opening or skin break, it can create an embolism (air bubble) that can be life threatening.
• Eye damage: Particles that are being blown can “blow back” and strike the eyes. The air itself can also cause injury if it is pointed toward the eyes.
• Hearing loss: Some compressed air equipment can be loud enough to damage hearing. Always wear proper PPE.
• Combustible dust: If compressed air is used to blow certain dusts, it can create a suspension in the air that could ignite if there is an ignition source.
• Respiratory: Particles or air can enter the respiratory system, posing deadly hazards.
• Whips: If not properly secured, hoses can whip and cause severe injury.

Workers must be trained that even extremely low pressures, such as 5 or 10 psi, can still cause severe damage if pointed toward the body, particularly the mouth, eyes, ears, or open areas in the skin.

Employers should train employees on the dangers of compressed air, and ensure the equipment is equipped with the necessary safety features and is properly maintained.

Supervisors should watch for improper use, particularly horseplay, and initiate corrective action. In addition, for many applications, a broom or shop vacuum may be just as effective at cleaning, and much safer. Compressed air may seem harmless, but if strict safeguards and practices are not utilized it can be deadly.

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.

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.