Medical marijuana case shows the power of state law

What does the standard require?

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

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

First aid trained or first responder?

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

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

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

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

What’s considered “near proximity”?

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

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

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

Training requirements

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

Keys to remember

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

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.

Two-part assessment

The policy advises officers to begin all roadside inspections in English. If it seems the driver may not understand the officer’s initial instructions, the officer is directed to conduct a two-part assessment to evaluate the driver’s compliance with the English language standard.

The first step is a driver interview, though details of the interview process were redacted from the public version of the policy. The policy says drivers should not use tools to facilitate communication during the interview, such as interpreters or smart-phone applications.

The policy directs officers to cite drivers for a violation if they cannot pass the interview portion of the assessment.

Step two in the assessment is evaluating whether the driver can recognize common highway traffic signs. The policy contains images of signs officers can use for this part of the test, but those too are redacted from the public version of the policy.

‘Out of service’ as of June 25

If a driver fails the test, the policy says the officer should:

1. Cite the driver for a violation of 391.11(b)(2);
2. Document evidence to support the violation, including the driver’s responses or lack thereof;
3. Beginning June 25, place the driver out of service (June 25 is when the violation will be added to the North American Standard Out-of-Service Criteria, as previously announced by the Commercial Vehicle Safety Alliance); and
4. When warranted, initiate an action to disqualify the driver from operating commercial motor vehicles in interstate commerce.

Drivers who are placed out of service won’t be allowed to drive until they can meet the English language requirements.

The policy applies to all federal enforcement personnel who perform inspections on drivers engaged in interstate commerce. Its effect on state-level enforcement remains unclear for now.

According to the policy, drivers in a commercial zone along the U.S.-Mexico border may be cited but should not be placed out of service.

The regulation

The Federal Motor Carrier Safety Regulations state that commercial drivers must be able to “read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”

The new policy replaces a 2016 policy that ordered inspectors not to place drivers out of service for violating the language requirement.

How would they help?

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

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

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

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

Inspections

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

CDLs

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

Parts and accessories

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

Other changes

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

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

Take action

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

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

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!

Preparation

Listen then repeat

Difficult questions

Jumping ahead

What would you do?

So, if Joe Employee were to ask to bring in his emotional support squirrel, what do you do?

Treat the request as you would any accommodation request. You would do the same if Joe asked to bring in a service dog. Look at the particulars of the situation, including the employee’s job, the work environment, and so forth. Talk to the employee. This is all part of the ADA’s interactive process.

Assuming it’s possible to modify the no-animal policy, you may (but are not required to) ask for medical documentation if the disability and need for accommodation are not obvious or already verified. You have to consider only those accommodations that are needed because of a disability. Documentation might include a detailed description of how the animal would help the employee in performing job tasks and how the animal is trained to behave in the workplace.

Once the need for accommodation is established, the next step is to talk with the employee about whether the animal is trained to be in a work environment and if it will be under the employee’s control at all times. You do not have to provide any accommodation that poses an undue hardship. One factor in determining undue hardship is whether the accommodation will be unduly disruptive to other employees or to the ability to conduct business.

Finally, possibly the best way to determine whether to permit the employee to bring an animal to work is to allow it on a trial basis and see if it works. You might want to make a written agreement with the employee that there will be a trial period, how long it will last, and what factors might end the trial period early. If, for example, the animal shows any sign of aggression or if the employee cannot keep the animal quiet or under control, you will immediately end the trial period and deny the request.

If you do not have a no-animal policy and allow other employees to bring in animals, then you should allow employees with disabilities to bring in animals without going through the accommodation process.

Ordinance aims to help the unhoused

The intent of “ban the address” is to discourage discrimination against otherwise qualified job candidates who are unhoused (i.e., homeless). A Spokane city council member who sponsored the ordinance told reporters that its passage “represents a major step forward, providing hope, dignity, and opportunity to workers who have faced challenges due to not having a permanent residence.”

The ban-the-address ordinance doesn’t prohibit employers from giving applicants the opportunity to provide a mailing address or other means of contacting them on an application or as part of the application process.

What the ordinance does prohibit is requiring an applicant to provide an address or residence history until after granting a provisional employment offer. Employers should also refrain from asking on a job application or in an interview about the applicant’s housing status. For example, interviewers shouldn't ask “why do you have a P.O. box?” or “why are you using this address?”

Employers that violate the ordinance—by asking questions about an applicant’s address or housing status before a conditional job offer—can face civil fines. The initial fine for a violation is up to $261.

Exceptions to the ordinance

The ordinance makes an exception for cases in which an individual’s housing status has “bona fide and legitimate relation” to the primary duties of the job. The exception also applies if a federal, state, or local law requires address information for a specific job (e.g., security clearance, licensing, or residency-based eligibility).

The Spokane ordinance also says that employers shall not “reject or disqualify an applicant solely because the individual does not have a fixed or regular residence, or because the individual is homeless or unhoused, or because the individual lives on the street, in a shelter, or in a temporary residence.”

Something for all employers to consider

While only employers in the city of Spokane are directly affected by this ordinance, employers anywhere struggling to fill positions might want to consider placing less emphasis on where job applicants live. Asking for an applicant’s address can unintentionally reveal socioeconomic status, housing insecurity, or even race and ethnicity (due to residential segregation). Avoiding questions about address may reduce unconscious bias and level the playing field for all applicants.

Key to remember: Spokane, Washington is the first city in the nation to have a ban-the-address ordinance. The purpose of this ordinance is to prohibit employers from discriminating against job applicants based on the address they provide during the application process. The scenario the ordinance aims to eliminate is one where an otherwise qualified job candidate is discriminated against because they find themselves homeless due to circumstances unrelated to their ability to do the job. 

When

After employees receive a certification request, they have at least 15 calendar days to get it completed and returned to the employer. If, however, employees can’t meet that 15-day deadline despite their good-faith efforts, employers must be flexible.

If employees don’t meet the 15-day deadline without a good reason, employers may delay FMLA protections after the 15-day deadline has passed and until employees give them a certification.

Who

Not everyone may complete an FMLA certification. For medical leave, only certain health care providers can complete a certification. These include:

• Doctors of Medicine or osteopathy,
• Podiatrists,
• Dentists,
• Clinical psychologists,
• Optometrists,
• Chiropractors,
• Nurse practitioners,
• Nurse-midwives,
• Clinical social workers,
• Physician assistants, and
• Christian Science Practitioners.

Importantly, any health care provider from whom employers or their group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits will also suffice.

What (information)

The information in the certification should include whether the employee or family member has an FMLA serious health condition. The second page has a checklist that health care providers can use to indicate this.

Employers may not require that a certification include a diagnosis. Doctors might include related medical information, but only if they see fit to do so.

A certification should also tell the employer when to expect the employee to take leave.

Keep it confidential

Certifications often include quite a bit of medical information. Under the FMLA, employers must keep such information confidential and separate from the general personnel file(s).

Employers may share medical information in only three exceptions:

1. They may tell supervisors and managers about necessary work restrictions and necessary accommodations.
2. They may tell first aid and safety personnel (when appropriate) if the employee's physical or medical condition might require emergency treatment.
3. They must give government officials investigating compliance with FMLA (or other pertinent law) relevant information upon request.

Key to remember: Certifications are often at the heart of FMLA leave administration as they contain relevant information employers need to determine if an absence qualifies for FMLA protections.

#1 Start here

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

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

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

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

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

#2 Train on these topics

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

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

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

Truck-related topics include the following:

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

Workplace-related topics are examples like these:

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

#3 Determine success

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

#4 End here

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

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

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

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

Action item

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

Key to remember

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

Job security failure

That evening, Brandon texted his supervisor to report a potentially fatal safety risk created by another coworker and provided photos of the incident. He had taken the photos a month previously, but did not immediately report the issue. In fact, after taking the pictures, he allegedly boasted to a coworker that he was holding on to them for “job security.”

When Brandon got fired less than two weeks later, his month-long delay in reporting a serious safety issue was one of the factors cited, along with his behavioral problems. In addition, the employee who Brandon had told about the photos was admonished for not relaying the concern sooner. And of course, the employee who caused the safety issue was counseled on avoiding future risks (the court documents did not describe the nature of the safety issue).

This situation became a court case because Brandon sued for wrongful termination relating to his request for leave under the FMLA. He claimed that he was fired for attempting to exercise his FMLA rights, but in the words of the court, he was fired “for failure to reform his behavior and to report the safety concern timely.” Although the FMLA does allow employees to take job-protected leave and prohibits retaliation for exercising those rights, it does not grant employees protection from termination for misconduct or other legitimate workplace concerns.

For related information, see our article, Can you fire someone who got injured? Yes, if you do it correctly.

Not retaliation

This case presents an interesting outcome, since employees can be protected from termination or retaliation for reporting a safety concern. In this case, however, the employee intentionally withheld knowledge of a safety concern, knowing that he was facing disciplinary action, thinking he could play that card in the future to protect his job.

Ironically, rather than providing the “job security” that he expected, the reporting delay contributed to the company’s decision to fire him — and the court agreed that it was a justifiable reason to fire someone.

The case was Tatum v. Southern Company Services, Inc., in the Fifth Circuit Court of Appeals (No. 18-40775), with the ruling made July 22, 2019.

Key to Remember: Several federal laws prohibit retaliation against employees who exercise certain rights, but those laws do not protect employees from termination for legitimate reasons, including safety violations.

Start with a strong paper program

A strong paper program alone doesn’t guarantee a solid safety philosophy, but you won’t find a successful one without it. Written plans, policies, and documentation form the foundation for setting expectations, tracking progress, and defining safety goals.

Key elements to include are:

• A clear mission statement with safety objectives,
• Programs addressing both general and specific safety topics,
• All required regulatory plans,
• Detailed records of training, inspections, and incidents, and
• An organized system for accessing safety documents.

Earn buy-in from people involved

Like any significant organizational change, successfully implementing a safety philosophy depends on securing full support from everyone involved.

Commitment must start at the top—executives need to lead by example to ensure supervisors and employees are fully engaged. If leadership doesn’t prioritize safety, it’s unlikely the rest of the organization will.

Impact management

Managers who understand how safety reduces incidents and downtime are more likely to support it. To gain buy-in from others focused on production or costs, speak their language—show how safety saves money, boosts quality, and improves morale.

Highlight cost savings from fewer claims, link safety to product quality, share success stories, and emphasize the benefits of public and employee relations.

When leadership sees the value, they’re more likely to support safety programs that involve all levels of staff. Engaging employees in safety committees or projects helps embed safety into the culture, especially as those employees grow into leadership roles.

Involve employees

Employees won’t truly buy into safety until they see it in action. If policies aren’t backed by training, daily enforcement, and proper resources, workers will quickly notice—and may stop taking safety seriously.

Before using discipline, ensure that employees have been adequately trained, have access to written procedures, are equipped with the necessary tools, and receive positive reinforcement for exhibiting safe behavior.

If leadership prioritizes production over safety, employees will follow suit. But when managers lead by example and consistently enforce safe practices, employees are more likely to adopt and uphold a strong safety culture.

Support people and processes

Visible management commitment and active employee involvement are key to a strong safety culture. While some safe behaviors happen naturally, effective safety programs require planning, structure, and continuous effort.

Support this culture through actions such as involving employees at all levels, holding safety meetings, forming safety committees, collecting suggestions, and providing training tailored to real job-site needs.

These efforts require management to provide training, time, and funding. A lasting safety philosophy is built through teamwork, consistent support, and shared responsibility across the organization.

Key to Remember

A strong safety philosophy isn’t just written—it’s lived. It starts with clear policies, grows through visible leadership commitment, and thrives when every employee is involved and empowered. When safety becomes part of how work gets done, not just something added on, your company builds a culture that protects people and drives lasting success.

Q: When will OSHA’s proposed Heat rule become final?

A: The agency has scheduled a virtual public hearing for June 16 on its proposed Heat rule. Following the hearing, OSHA will analyze comments it received, which can take several months. Once this step is completed, OSHA will determine what’s next. This may include finalizing the rule.

Q: How does the proposed heat rule define indoor work?

A: “Indoor” is defined in the proposed rule as “an area under a ceiling or overhead covering that restricts airflow and has along its entire perimeter walls, doors, windows, dividers, or other physical barriers that restrict airflow, whether open or closed.” Examples include:

• A garage, even if the door is open;
• The interior of a warehouse, even if multiple doors are open on loading docks; and
• A shed with four walls and a ceiling, even if the windows are open.

Construction activity is considered “indoors” when performed inside a structure after the outside walls and the roof are built.

Q: Which states have their own heat regulations?

A: Several states have their own heat-related regulations. Note that they vary in the type of industries covered, whether they apply to indoor and/or outdoor workplaces, and the expectations and requirements for employers. These states are:

• California
• Colorado
• Maryland
• Minnesota
• Nevada
• Oregon
• Washington

Additionally, Arizona and OSHA Region IX have launched emphasis programs.

• Arizona — In July 2023, Arizona implemented a state emphasis program (SEP) to reduce worker exposure to heat-related hazards in indoor and outdoor workplaces. In May 2025, the state’s governor formed a heat safety task force, with the goal of developing employer guidelines on heat safety by the end of 2025.
• OSHA Region IX — This region adopted a regional emphasis program (REP) for heat illness in November 2022. It applies to indoor and outdoor worksites where potential heat-related hazards exist in Alaska, American Samoa, Arizona, California, Guam, Hawaii, Idaho, Nevada, the Northern Mariana Islands, Oregon, and Washington.

And finally, several states and territories adopted OSHA’s National Emphasis Program (NEP) for indoor and outdoor heat hazards (CPL 03-00-024). Some adopt it identically and others made changes. These include California, Connecticut, Hawaii, Massachusetts, Maryland, Maine, Michigan, New Jersey, New Mexico, Nevada, New York, Oregon, Puerto Rico, South Carolina, Virginia, the Virgin Islands, Vermont, and Washington.

Q: Can OSHA cite our warehouse for heat hazards?

A: Yes, OSHA can cite your warehouse for heat hazards. In fact, under the agency’s NEP (CPL 03-00-024), OSHA compliance officers must initiate inspections in any of the 70 listed, high-risk industries (including the warehousing and storage industry) in outdoor and indoor work settings when the National Weather Service issues a heat warning or advisory for a local area. Inspectors will review illness logs and other records, interview workers, determine if the employer has a heat illness prevention program, document ambient conditions, and identify work activities relevant to heat-related hazards.

If there’s sufficient evidence to issue a citation for heat-related hazards, a citation under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act will be issued.

Q: Does heat stress have to be reported on our OSHA Logs?

A: Heat illness cases must be recorded if they meet OSHA’s recording criteria. To be recordable, the condition must involve medical treatment beyond first aid. First aid treatments listed in 29 CFR 1904.7 include “drinking fluids for relief of heat stress.” For instance, if an employee showed heat stress symptoms and needed a break to cool down and drink fluids, this alone is not a “recordable” case for the 300 Log. However, if the employee went to the hospital for intravenous (IV) fluid replacement, that would be recordable as medical treatment. Similarly, OSHA says if the employee went unconscious or oxygen was administered, the case is required to be recorded.

A case of heat stress will also become recordable if the employee needs restrictions or days away from work.

Key to remember: In the absence of a final Heat rule at the federal level, OSHA can use the General Duty Clause to cite for heat-related hazards. On June 16, the agency will hold a virtual public hearing on its proposed Heat rule. Meanwhile, some states already have heat regulations in place.

Several violations identified

OSHA investigators determined the company exposed employees to electrical hazards, when investigators found the employer:

• Permitted use of expired electrical protective equipment.
• Neglected to ensure workers’ ability to recognize and address electrical hazards before work began.
• Failed to supervise workers and conduct inspections on an annual basis.
• Did not provide adequate briefings on job hazards, work procedures involved, special precautions, energy-source controls and personal protective equipment required.
• Allowed live-line tools for work on live power lines that should have been removed from service every two years.
• Let workers using tools within nine inches of an energized cutout switch and attempting to work on a broken cutout switch without ensuring that all equipment was properly de-energized as required by safety regulations.
• Failed to ensure equipment was de-energized.

In addition, OSHA found that the employer failed to inspect the worksite to identify possible hazards, before employees conducted repairs and maintenance in overhead power lines.

OSHA issued the employer eight citations and proposed nearly $85,000 in penalties.

Key to remember: Electrical hazards are one of the deadliest hazards found on construction sites. Prevent worker fatalities by adhering to the OSHA compliance requirements.

What are welding fumes?

Welding fumes are a mixture of metallic oxides, silicates, and fluorides generated when metals are heated above their melting point. As the vaporized metal cools, it condenses into a particulate matter that becomes airborne and easily inhaled. The content of the fumes depends on factors such as the type of welding process, base and filler metals used, gases, and any surface coatings present. For example, welding stainless steel can release hexavalent chromium, a well-known carcinogen. Even brief exposure can cause dizziness, respiratory irritation, and nausea. Over time, the health effects become more severe and include chronic bronchitis, neurological disorders, metal fume fever, and an increased risk of lung cancer. Other substances are manganese (linked to neurological damage like Parkinson’s), nickel and cadmium (both related to cancer and respiratory issues), and gases like ozone and nitrogen oxides (severely irritate lung tissue).

Controlling exposure

1. Controlling exposure to welding fumes should follow OSHA’s hierarchy of controls: Elimination or Substitution – using lower emission welding rods, choosing welding methods that produce fewer fumes like TIG, and cleaning surfaces of paints or coatings before welding.
2. Engineering Controls – installing local exhaust ventilation is the gold standard, but you can also use portable fume extractors and welding booths with fume arms when mobility is needed. Adequate ventilation in the welding areas also prevents other workers from being exposed.
3. Administrative controls – rotating tasks to reduce exposure duration, scheduling high fume work when fewer workers are present, and maintaining clean areas to prevent build-up.
4. Personal Protective Equipment (PPE) – Using powered air-purifying respirators for high-risk jobs or wearing a properly rated welding helmet and respirator combo. Workers should be trained to check, wear, and maintain their PPE frequently.

Monitoring and compliance

You cannot manage what you do not know, so monitoring air quality in welding areas is crucial. Air sampling should be conducted regularly to measure exposure levels against OSHA and ACGIH limits, especially when welding stainless steel, galvanized metal, or working in confined spaces. Hiring an industrial hygienist or using real-time monitoring equipment ensures that employers are compliant and actively protecting their workers. In summary, welding is hazardous, but exposure to toxic fumes does not have to be part of the job. Employers can significantly reduce the risk of occupational illnesses by recognizing what is in the air, implementing layered safety controls, and consistently monitoring work environments.

Keys to remember: Welding fumes are a serious short and long term health risk, but they are entirely avoidable with the right controls.