OSHA faces blowback from CSB over stalled oil/gas rule

Stormwater discharges

Rain and snow that flow over land or impervious surfaces (like building rooftops and parking lots) and don’t soak into the ground generate stormwater runoff. The runoff can gather pollutants generated by industrial activities at a facility and transport them into nearby waterbodies. Your facility must have a permit to discharge stormwater associated with industrial activities to waters of the United States (40 CFR 122.26).

The NPDES program regulates stormwater discharges from 11 categories of industrial activities, listed at 122.26(b)(14). Examples of covered activities include:

• Heavy manufacturing at chemical plants;
• Treating, storing, and disposing of hazardous waste; and
• Processing industrial wastes at landfills.

Note, however, that construction sites that disturb 5 or more acres (the tenth category) are permitted individually.

The permit contains stormwater control measures (including “best management practices”) to limit pollutants that enter stormwater runoff. Containment systems, employee training, and infiltration devices are all ways to control runoff.

Most states issue industrial stormwater discharge permits. EPA issues individual permits and the Multi-Sector General Permits (MSGPs) to facilities where the agency is the permitting authority. The MSGP is EPA’s general permit for industrial stormwater discharges.

Wastewater discharges

Many industrial processes use or generate water that contains pollutants, referred to as industrial wastewater. There are two types of wastewater:

• Process wastewater (defined at 122.2) refers to water used in manufacturing or processing activities.
• Non-process wastewater refers to water used for activities other than processing products (e.g., sanitary wastewater).

Your facility must have a permit to discharge industrial wastewater to surface waters (122.21(a)).

The NPDES program regulates direct wastewater discharges from industrial sources through rules based on the type of facility and activity. The regulations also have industry-specific requirements for:

• Animal Feeding Operations,
• Mining,
• Oil and Gas,
• Pesticide Applications, and
• Vessels Incidental Discharges.

Effluent limitations are the primary control method for industrial wastewater discharges. EPA establishes Effluent Limitations Guidelines (ELGs) for industrial categories and subcategories. These pollution-reduction performance standards are based on the best available technology that’s economically achievable by facilities in the industry. The ELGs are then incorporated into the permits through effluent limitations.

Additionally, industrial facilities must meet water quality-based effluent limitations when the technology-based standards don’t achieve the required water quality standards. Both industrial stormwater and wastewater discharge permits may include technology- and water quality-based effluent limitations.

As with stormwater permits, most states issue industrial wastewater permits. Facilities in areas where EPA is the permitting authority must obtain either a general or individual NPDES permit.

Check your state requirements!

Because a majority of the states run stormwater and wastewater permitting programs, it’s crucial to check the state regulations. State permits must contain limits as stringent as EPA’s federal permits, and some states may impose stricter limits and/or additional requirements.

EPA’s website lists the states authorized to issue NPDES permits with links to the state agencies that run the NPDES program.

Key to remember: Industrial stormwater and wastewater discharges, and the permits that regulate them, are different.

Does OSHA’s BBP standard cover law enforcement?

That's a trick question! The Occupational Safety and Health Act (OSH Act) only covers the private sector. There’s a gap in coverage for the public sector workers like law enforcement officers employed by a municipality or state agency. That means federal OSHA does not regulate the Bloodborne Pathogens (BBP) standard at 29 CFR 1910.1030 for these officers.

However, many states have filled that gap in one of two ways:

• About half the states are considered OSHA “state-plan” states. That means they must be equivalent to or more stringent than federal OSHA for the public sector OR both the public and private sectors. These state-plan states have regulations identical to, similar to, or tougher than the federal Bloodborne Pathogens standard.
• Some of the remaining non-state-plan states proactively filled the gap for the public sector. They adopted OSHA regulations like 1910.1030 under state laws and regulations, or otherwise created their own worker safety and health laws and regulations related to hazards like bloodborne pathogens.

If your state has bloodborne pathogens laws and regulations, it’s important to meet them if you have officers (or any workers) with occupational exposure. Note that occupational exposure is not the same thing as an exposure incident. An exposure incident is actual contact with blood or OPIM. Whereas occupational exposure is reasonably anticipated contact as part of the job duties.

NIOSH offers guidance for law enforcement

Regardless whether your officers are protected by bloodborne pathogens laws and regulations, NIOSH’s fact sheet (DHHS (NIOSH) Publication No. 2025-101) provides tips and best practices specific to the risks to law enforcement. For example, NIOSH suggests that officers complete training on:

• Search techniques,
• Evidence collection methods,
• Use and removal of personal protective equipment (PPE), and
• Reporting work injuries and illnesses.

Some ways officers can keep safe include, but are not limited to:

• Getting HBV vaccination,
• Wearing gloves while performing searches, and considering gloves with puncture resistance (such as those that meet ASTM Standard F2878-19),
• Asking a suspect if they have any sharp objects BEFORE making a search,
• Using mirrors and flashlights to search under or in the crevices of furniture, and
• Reporting sharps hazards and near misses.

When handling sharps, NIOSH recommends:

• Not handing needles/sharps to other officers,
• Never recapping needles or taking syringes apart,
• Using FDA-cleared sharps containers that meet sharps container requirements at 1910.1030(d)(4),
• Replacing sharps containers when they reach the “full” line of the containers, and
• Disposing sharps containers per your state environmental waste laws and regulations.

If an officer suffers an exposure incident involving a contaminated needlestick/sharp, the fact sheet urges the officer to:

• Wash the injured area with soap and water, and
• Follow your law enforcement department’s plan for what to do (e.g., report injuries according to plan) and where to seek treatment.

Treatment should be sought from a healthcare provider immediately. That provider may offer medication or a vaccine to prevent infection.

Earlier NIOSH guidance

The latest fact sheet comes on the heels of an 8-page guidance document from NIOSH — DHHS (NIOSH) Publication No. 2022-154. Learn more about that in our J. J. Keller® Compliance Network article, “NIOSH report points at sharps injuries in law enforcement,” from September 7, 2022.

Key to remember

A recent NIOSH fact sheet argues that law enforcement officers who do searches are at risk of needlestick/sharps incidents! The agency offers tips about how to stay safe and how to handle and dispose of sharps safely. It also explains what to do if there’s an exposure incident.

Five-fold increase

The move aims to cut much more than a similar “two-for-one” order issued at the start of President Trump’s first stint in the White House in 2017. That order applied only to regulations that would cost $100 million or more.

The White House says the 2017 order was “the most aggressive and successful regulatory reduction effort in history” and eliminated five and one-half regulations for every new one issued.

The new order, according to a White House fact sheet, says that whenever an agency promulgates a new rule, regulation, or guidance, it must identify at least 10 existing rules, regulations, or guidance documents to be repealed.

It will be up to the head of the White House Office of Management and Budget to enforce the order and ensure agencies use a standard measuring stick to verify compliance.

The order also requires that for fiscal year 2025 (which ends September 30), “the total incremental cost of all new regulations, including repealed regulations, be significantly less than zero,” the fact sheet says. The order itself was not available on the White House website when this article was published.

The new executive order comes on the heels of another directive, issued January 20, 2025, that put a freeze on all pending regulations until the new administration has time to review them.

What are PFAS?

PFAS, called “forever chemicals,” are long-lasting manufactured chemicals that may pose risks to human and environmental health. With thousands of PFAS chemicals, however, controlling their use to reduce the risks is no easy task.

Additionally, PFAS appear in nearly every sector. They’re used in a wide range of products (like food packaging, cleaning products, and textiles) and for commercial and industrial applications.

Prepare for more state PFAS rules

Safer States, an alliance of environmental organizations that supports developing state regulatory policies for toxic chemicals, published the 2025 Analysis of State Policy Addressing Toxic Chemicals and Plastics. The evaluation covered states’ toxic chemical policies (a) introduced in 2025, (b) introduced in 2024 and considered through 2025, and (c) expected to be introduced in 2025. It also included related proposed regulations that would implement existing state laws.

The report projects that at least 29 states will likely consider policies to address PFAS in 2025, including:

Safer States expects these states to consider policies such as:

• Phasing out PFAS uses;
• Disclosing to consumers the presence of PFAS in products;
• Testing and monitoring for PFAS in water, sludge, and waste;
• Setting PFAS standards for drinking water, groundwater, and surface water; and
• Providing resources to clean up PFAS-contaminated sites.

Current state PFAS actions

Multiple states already have PFAS rules on the books. Check out these examples:

• California bans selling or distributing in commerce any new juvenile product that contains regulated PFAS chemicals (CA HSC Section 108946), such as changing pads, motor vehicle child restraint systems, playpens, and strollers.
• New York forbids selling or offering for sale new apparel with intentionally added PFAS (N.Y. Consolidated Laws Section 37-0121).
• Hawaii prohibits manufacturing, selling, offering for sale, and distributing for sale or use food packaging — wraps, liners, plates, food boats, and pizza boxes — with intentionally added PFAS (Act 152 Relating to environmental protection).
• Maryland bans manufacturing, selling, and delivering cosmetic products that contain any of 13 specified PFAS (Md. Code, Health-Gen. Section 21-259.2).
• Colorado requires manufacturers of cookware with intentionally added PFAS in the handle or any product surface that contacts food to, among other things, list the presence of PFAS on the product label (House Bill 22-1345).

Many states also have proposed PFAS rules under consideration, like Texas, Maine, Arizona, Illinois, and Virginia.

Stay alert to state PFAS actions

If your facility uses PFAS, it’s essential to know whether the state has regulations that apply to your operations. Plus, knowing the state’s potential future PFAS rules coming down the pipeline can help you better prepare to comply.

Consider these general tips to support your facility’s efforts to track state PFAS actions:

• EPA provides an online list of the state environmental agencies with links to their websites. Check the state environmental agency’s online news and press releases for policy updates.
• Search for a dedicated rulemaking webpage, as many states maintain a list of proposed and recently adopted regulations. Note that some state sites may be easier to navigate than others, and some state sites may not have a dedicated rulemaking webpage.
• Establish a contact at the state environmental agency. Each agency should list contact information, so don’t hesitate to reach out. You may be able to find someone at the agency who can answer questions about the state’s current and future PFAS rules.

Staying alert to state PFAS regulations can help your organization maintain compliance.

Key to remember: States across the country continue to consider and implement regulations related to PFAS. Staying alert to state PFAS actions is key for businesses to stay compliant.

The importance of CPR and early defibrillation

For every minute a patient is in cardiac arrest, their chances of survival decrease dramatically. When a patient doesn’t have a pulse and isn’t breathing, CPR should be performed until an AED is available. It’s important to note that CPR alone does not restart the heart. CPR is an oxygen circulation procedure. AEDs, on the other hand, are meant for lifesaving intervention.

CPR and early defibrillation are vital components of the emergency medical services (EMS) chain of survival that increases the odds of cardiac patient survival. However, according to the American Heart Association (AHA), even the best CPR can’t provide enough circulation of oxygen to the brain and heart for more than a few minutes. In fact, a patient whose brain is deprived of oxygen for 10 minutes or more seldom recovers.

Signs and symptoms of cardiac compromise

Just like a reliable vehicle, the circulatory system is the human body’s blood transportation system, and the heart is the engine. Amazingly, the heart generates its own electrical impulses, pumping in a regular, rhythmic manner. As with any engine, the heart requires a certain amount of pressure to function and doesn’t work well when clogged with grease or debris. The most common causes of sudden cardiac arrest include a heart attack, electrocution, and asphyxiation — all of which could occur in the workplace. Common signs and symptoms include:

• Chest pain accompanied by a crushing or squeezing sensation,
• Pain that radiates to the jaw or arm,
• Irregular pulse and/or abnormal blood pressure,
• Shortness of breath,
• Cool and sweaty skin,
• Nausea and vomiting, and
• Anxiety or feeling of impending doom.

CPR provides the pressure for the body’s “engine” to oxygen circulating, while an AED provides the electrical impulses to keep the engine pumping.

OSHA requirements regarding CPR

OSHA 1910.151 requires first aid treatment be provided in the absence of an infirmary, clinic, or hospital in near proximity to the workplace used to treat injured employees. This may include assisting a victim of cardiac arrest using CPR or defibrillation.

OSHA requirements for CPR and defibrillation differ considerably. Standards requiring CPR include:

• 1910.146 Permit-required Confined Spaces
• 1910.266 Appendix B: Logging Operations – First Aid and CPR Training
• 1910.269 Electric Power Generation, Transmission, and Distribution
• 1910.410 Qualifications of Dive Team and
• 1926.950 Construction Subpart V, Power Transmission and Distribution

OSHA recommends basic adult CPR refresher training and retesting every year, and first aid training at least once every three years. CPR training include facilitated discussion along with ’hands-on’ skills training that uses mannequins and partner practice.

OSHA requirements regarding AEDs — you might need a prescription

Though OSHA recognizes AEDs as important lifesaving technology that plays a role in treating cardiac arrest, the agency doesn’t currently require their use in the workplace. Instead, OSHA wants employers to assess their own requirements for AEDs as part of their first aid response.

AEDs are considered Class III medical devices which means the Food and Drug Administration (FDA) has some oversight on their use. Almost all AEDs require the purchaser to obtain a prescription from a physician under FDA regulations. The prescription process is meant as a quality control mechanism to ensure AEDs are properly maintained, that all designated responders are properly trained, and assist employers with establishing an emergency response plan for their workplace AED program.

The AHA requires AED operators to also receive CPR training as an “integral part of providing lifesaving aid to people suffering sudden cardiac arrest.” Though easy to use, each AED is slightly different, so training helps users understand the unique traits and supplies for the individual units at their workplace. Additionally, AED users must be trained to understand the signs of a sudden cardiac arrest, when to activate the EMS system, and how to perform CPR.

AEDs are light, portable, easy to use, and inexpensive. They’re best placed near high-hazard areas such as confined spaces, near electrical energy, or in remote work areas. Response time to reach AEDs should be kept within 3–5-minutes.

Training requirements

Many states require or encourage CPR and AED training from nationally recognized organizations. Any AED training should include CPR training. OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as AHA, the American Red Cross, or National Safety Council is recommended.

Keys to Remember

While OSHA doesn’t currently require the use of AEDs in the workplace, they do expect employers to assess their own AED requirements as part of their first aid response. AED training is required by most states and should include CPR with a hands-on practical component.

Proposed legislation

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

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

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

Your restroom availability affects their health

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

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

Keys to remember

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

What CDL/CLP drivers and employers need to do

To get ready for these changes, drivers and carrier employers should:

• Stay updated: Each SDLA must switch to the new system no later than June 22nd. Known transition dates:
  • Georgia (GA): Was expected to start February 24, 2025, but is on-hold.
  • Wisconsin (WI): April 13, 2025 (tentative)
  • Note: Based on testing so far, updates should appear on the CDL record within 48 hours of the exam, depending on when examiners enter the results. All other SDLA transition dates and how long updates will take to be on MVRs aren't known at this time.
• Follow the current process until transition: CDL/CLP drivers must keep submitting copies of each medical certificate until their SDLA tells them to stop.
• Prepare for the transition: Update internal processes and train all relevant staff on the new procedures. If more than one licensing state is involved, there may be more than one process to update DQ files until all SDLAs transition.
• Inform non-CDL drivers: If applicable, let non-CDL drivers know that their medical certification process is not changing.

After the transition

There are items to keep in mind after the SDLAs transition to the new process:

• Carriers: Must place motor vehicle records (MVRs) in the driver qualification (DQ) file within the required timeframe (to be determined). They no longer need to note that the certified medical examiner (CME) was on the Registry.
• CDL/CLP drivers: Must continue to self-certify their driving tier (interstate or intrastate) and whether they need to be medically certified (Excepted/Non-excepted) when they apply for a new, renewed, or upgraded CDL/CLP.

Unknowns

There are a few things the FMCSA needs to clarify before June 23rd:

• Issuance of medical cards: According to the current regulations, CDL drivers won't get hardcopy medical cards after June 23, 2025. Right after the exam, a CDL driver might not have proof of their new certification, and the information won't be on the MVR for about two days. This could cause issues if the old certification has expired.
  • Tip: Schedule CDL driver medical exams well before the expiration date.
• Updated timeframe for MVRs in the DQ file: Currently, there is a 15-day window to place a CDL MVR in the DQ file. After June 23rd, this time will be shorter, but we don't know how much shorter.

Keys to Remember: As the June 23, 2025, deadline approaches, carriers need to monitor the implementation dates of each SDLA affecting their drivers. If they have CDL drivers licensed in several states, they need to have more than one process to maintain DQ files — until each SDLA switches to the new process.

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!

What is 392.2C?

Section 392.2C is enforcement’s code for “failure to obey traffic control device.” The C stands for control.

The citation appears in the severity table for the Unsafe Driving BASIC (Behavior Analysis and Safety Improvement Category). The violation has been assigned a value of 5 out 10, with 10 being the most severe. The violation is used when calculating both the carrier’s and driver’s Unsafe Driving BASIC scores.

In most instances, the traffic control device is not a signal light or stop or yield sign. Rather, it is the sign that instructs the driver to pull into a weigh station.

Who must pull into a weigh station?

The vehicles that must stop at scales and inspection locations vary from state to state and even from location to location within a state. The “weigh scale ahead” or similar sign should be the driver’s guide.

If the sign reads:

• All vehicles over 16,000 pounds, the driver can safely bypass the scale if under the weight threshold.
• All commercial motor vehicles, the driver should pull in. It is far better to be waived or green lighted through than to be chased down.

Often those who operate commercial vehicles not requiring a commercial driver’s license, such as a large pickup truck or small box truck, mistakenly believe weigh scale inspections are just for larger rigs.

What happens when a driver ignores signage?

If a driver goes past a weigh station without pulling in as directed by a traffic control device, enforcement will pursue and pull over the driver. The officer will then escort the driver back to the weigh station for a roadside inspection.

Even if the driver was honestly confused whether the sign applied to the vehicle, it is too late. And more than likely enforcement’s interest has been piqued. It is highly unlikely the driver will be waived through at this point, and 392.2C will be entered on the roadside inspection report.

Handling violations

CSA’s enforcement model suggests finding the root cause of roadside inspection violations to prevent future occurrences and ultimately improve BASIC scores.

A violation of 392.2C may have one of several root causes, such as:

• Confusion over applicability
• Inattentiveness (missing the sign)
• Running late
• Risky behavior (taking the chance that no one will pursue)
• Concern over other violations discovered once stopped

Whatever the reason, it must be addressed with the driver. Corrective actions range from refresher training to termination. If the driver was trying to avoid enforcement for other reasons (drugs, alcohol, over HOS limits), these other violations need to be addressed accordingly.

Key to remember: Failing to obey a traffic control device will be used in calculation of the CSA Unsafe Driving BASIC scores. Motor carriers should address the root cause of the violation so it does not recur.

Practice the basics

DOT drug and alcohol testing is a complex topic, even for the most seasoned drug and alcohol program manager. However, there are some overarching themes that apply to everyone in the game. Consider the following tips to help you when you are thrown a curve ball:

1. Know your definitions. Applying an incorrect definition to a regulation is one of the greatest obstacles to understanding DOT testing rules (49 CFR Parts 382 and 40). In fact, this concept applies to the Federal Motor Carrier Safety Regulations (FMCSRs) as a whole. Often applicability hinges on a single word.
2. Use DOT’s additional resources. The regulations often are vague, even with definitions spread throughout. The Federal Motor Carrier Safety Administration (FMCSA) and Office of Drug and Alcohol Policy & Compliance (ODAPC) realize there’s a lot to absorb, so they:
   • Publish interpretative guidance to their regulations;
   • Include pertinent details in the front matter (preamble) of their final rules;
   • Post frequently asked questions on their websites; and
   • Offer outreach documents on a variety of topics.
   By piecing together resources outside of the actual regulation, you may learn the intent of a rule and find clarification on what it means.
3. Don’t be surprised by gray areas. There are many areas in the regulations that aren’t clarified with additional definitions or interpretations. And some scenarios you experience aren’t addressed anywhere in the regulations. When you’re unable to find an answer using all available resources, you’re left with one option: Contact the agency directly through your state FMCSA office or an email or phone number listed on the federal website. Always document any conversations with FMCSA in case the advice is called into question.

Cover your bases through networking and education

Expanding your subject matter expertise should be a priority no matter the season of your career. Consider learning more about drug and alcohol testing by attending industry events and conferences. These events also offer an opportunity to network and glean from your peers.

Networking is still possible, even if you’re unable to attend live events. Social media offers a great way to stay in touch with others in your field through their posts that offer useful insights, tips, benchmarking, and articles.

And knowledge acquisition isn’t limited to in-person events either. You can stay on top of trends and news through:

• Webcasts
• Online training
• Virtual conferences and seminars
• Trade publications
• Blogs
• Social media posts from industry and enforcement
• Trade association meetings on virtual platforms

Key to remember: Rookies and seasoned veterans in the world of DOT testing have one thing in common. When putting in the practice, they can learn something new every day of their careers and make themselves star players. To let knowledge lapse can result in a big loss (in fines, insurance rates, lawsuits, and business).

‘State and local laws’

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

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

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

Not all 392.2 violations are used in CSA

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

Most common 392.2 violations

Below are the top 10392.2violations written during 2021. All of these violations are safety-related, and therefore used in the CSA SMS for scoring. The BASIC within the SMS the violation is scored in is shown following the violation description.

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

Key to remember

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

Who HIPAA covers

The HIPAA privacy provisions apply to employers only in their activities as group health care plan sponsors. If an employee, for example, asked an HR representative whether the company’s group health plan covered her particular health condition, HIPAA would apply, and the HR representative would need to keep that information private.

HIPAA’s privacy rules don’t apply to employers in other activities. Therefore, asking for FMLA certifications from employees doesn’t involve the HIPAA rules.

Other entities covered by HIPAA rules include health care providers, such as doctors, nurses, and medical staff. They may not disclose PHI with some exceptions, such as if an employee signs an authorization to release the PHI.

Taking the doctor out of the conversation

Employers have the right to ask employees for FMLA certifications. They give employees a certification form and ask that they have the doctor complete the relevant parts. Often, the doctor then gives the completed form back to the employee who, in turn, gives it to the employer. The doctor doesn’t give the certification directly to the employer.

When doctors give completed FMLA certifications to patients/employees, no HIPAA violation exists because it’s the patient’s information. The patient (or family member), then has the right to disclose their PHI to whomever they want, including the employer.

Putting the doctor into the conversation

Employees may ask that a doctor send a completed FMLA certification directly to the employer. In that situation, the doctor will require the employee/patient to sign a HIPAA disclosure authorization. That’s where the HIPAA privacy comes into play.

Employers may not force employees to ask that doctors send the certification directly to them. Employees have the right to get the certification from the doctor and then give it to the employer.

Once requested, employees are responsible for getting the certification to the employer. If employees don’t, whether they get it from a doctor or have the doctor send it to the employer, they risk their FMLA protections.

When employers may directly contact the doctor

Under the FMLA, employers may contact an employee’s health care provider only after receiving a complete and sufficient certification, and only for authentication or clarification of the certification. Only a health care provider, an HR professional, a leave administrator, or a management official may make such contact. In no case may the employee’s direct supervisor contact the employee’s health care provider. Employers may not, however, ask the health care provider for additional information beyond that contained on the medical certification form. Therefore, this request does not trigger HIPAA privacy rules.

Key to remember: Employers don’t violate HIPAA if employees get a certification from a doctor and then give it to the employer. Otherwise, doctors must get a HIPAA disclosure authorization from the patient to directly give a certification to the employer.

Tracking and managing employee training

Before delving into training, conduct a hazard assessment to determine what training employees need. Do they work with hazardous chemicals? Perform maintenance on machinery or equipment? Once you identify what hazards employees are exposed to, look at OSHA and state-plan requirements, if applicable. The regulations detail what must be covered in training and the frequency of training.

Define objectives to ensure employees have the skills and competencies they need to do their jobs safely. That way, each training session will be valuable, rather than just fulfilling a requirement. Even if so-called “canned” training materials are used, make sure to incorporate your own objectives. What do you want learners to take back to their jobs? Explain how the training applies to your workplace.

Choose a tracking method. This could be as simple as maintaining a spreadsheet or having employees sign into a training session, or it can involve digital solutions like Learning Management Systems or specialized training tracking software. Make note of the frequency of training required, whether it’s annual, refresher, or as needed.

Keeping up with changing regulations and training requirements

While OSHA has numerous training requirements in 29 CFR 1910 (general industry) and 1926 (construction), training on a particular topic depends on what hazards employees are exposed to.

For example, if employees are exposed to hazardous chemicals, they need training under 1910.1200, Hazard Communication. A look at the regulation shows that there’s no annual training requirement and that refresher training is required when a new chemical hazard is introduced.

While it’s a best practice to conduct annual training, not all regulations require it; if this is the case, you may not need to conduct your entire training program annually. Instead, consider toolbox talks or other brief safety meetings at the start of the shift that highlight a specific topic.

To keep up with regulatory changes, set a reminder to periodically visit state and federal regulatory agency websites and follow them on social media. Most have an active social media platform to keep the public informed. Join industry associations and your local safety council. These groups host meetings and events that provide regulatory updates and best practices.

Ensuring employees apply what they’ve learned

Survey respondents told us that ensuring employees actually use the tools and apply the practices learned in training is a critical factor for success. Some employees are resistant to change, and it can be challenging to get them on board with new procedures or practices.

Delayed evaluation, or follow-up evaluation, is one of the best ways to assess what employees learned and whether your training course met its objectives. You can follow up with learners to assess learning transfer after they’ve had time to go back to their workplace and apply what they’ve learned. The timing of your delayed evaluation should be based on your program resources, the specific topic of the training, and learners’ capacity to apply what they learned in the workplace.

For some trainings, it might also be appropriate to follow up with learners’ supervisors. Supervisors are in a good position to observe a worker’s performance – both before and after the training – and to note improvements or changes. After training, walk around your facility and see whether employees are doing what they’re supposed to be doing. Make a point of praising workers who are working safely and applying what they learned. If they’re not applying the training, find out why – does the personal protective equipment fit properly? Is there an ergonomic issue? Did workers understand the training as it was presented?

Key to remember: To address the top training challenges faced by EH&S professionals, determine training needs and requirements, define your training objectives, and follow up with employees to observe whether they’re applying what they learned.

OSHA’s announcement on helmets vs. hard hats

OSHA released a Safety and Health Bulletin (SHIB 11-22-2023) on November 22, 2023, detailing the key differences and benefits of using modern safety helmets over traditional hard hats.

And just a few weeks later, in the December 11, 2023 Trade Release, the Agency announced it would now require its inspectors to wear Type II head protection, which is also commonly referred to as safety helmets.

The two main benefits of Type II safety helmets

The November 22, 2023 SHIB discussed two main benefits of choosing modern safety helmets over traditional hard hats -- the construction of materials and the use of chinstraps.

And while OSHA has recognized the benefits of Type II safety helmets, and is actively taking steps to protect its own employees, it’s important to understand that there is not a new requirement for employers to make the switch to safety helmets.

That being said, a growing number of employers have recognized the benefits of added head protection and are choosing to use Type II helmets for their workers. In addition, some clients are starting to contractually require their construction contractors to make the switch as well.

Understanding the different types of head protection

Hard hats will have a Type I or Type II rating on the manufacturer’s sticker. These markings are based on ANSI Z89.1’s impact ratings.

Type I hard hats protect from objects or impacts from the top center area of the hard hat and are often used in work areas with no lateral head impact hazards.

Type II hard hats, on the other hand, offers protection from both top and lateral impacts and objects and is often found on construction job sites or complex general industry settings where workers face multiple head contact exposures.

Hard hats are classified based on their level of voltage protection. See the chart below.

Choosing the right head protection for your employees

Employers should conduct a job hazard analysis and/or a PPE assessment to determine which style hard hat is best for their workers. In general, OSHA recommends the use of Type II safety helmets at the following locations:

1. Construction Sites: For construction sites, especially those with high risks of falling objects and debris, impacts from equipment, or slips, trips, and falls, safety helmets have enhanced impact resistance and additional features that offer superior protection compared to the components and construction of traditional hard hats.

2. Oil and Gas Industry: In these sectors where workers face multiple hazards, including potential exposure to chemicals and severe impacts, safety helmets with additional features can provide comprehensive protection.

3. Working from Heights: For tasks or jobs that involve working from heights, safety helmets offer protection of the entire head and include features that prevent the safety helmet from falling off.

4. Electrical Work: For tasks involving electrical work or proximity to electrical hazards, safety helmets with non-conductive materials (Class G and Class E) provide protection to prevent electrical shocks. However, some traditional hard hats also offer electrical protection.

5. High-Temperature Environments: In high temperatures or where there is exposure to molten materials, safety helmets with advanced heat-resistant properties can provide additional protection to workers.

Key to remember: While there isn’t a new requirement for safety helmets, employers should review their workplace hazards to determine which style of hard hat will best protect their employees.

High rate/cost of MSDs

MSDs plague employers, according to 2021 to 2022 data from the BLS:

Ergonomic principles recommended

For decades OSHA has urged employers to apply ergonomics principles to solve MSD issues. Ergonomics is the science of fitting a job to a worker.

Looking back, it should be noted that OSHA even issued a final Ergonomics Program rulemaking in November 2000. Shortly thereafter, Congress passed a resolution of disapproval of the standard. OSHA was forced to remove the Ergonomics Program standard from the CFRs in April 2001.

Fast forward to today, OSHA can still use the General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act) to cite employers for exposing workers to recognized hazards that cause serious MSDs.

What about wearables?

Wearables have an unfortunate history. In the 1990s back belts were trending at work in hopes of reducing MSDs. Then OSHA issued an April 1998 letter of interpretation declaring, “Back belts are not recognized by OSHA as effective engineering controls to prevent back injury. While they may be accepted by individual workers because they feel as if they provide additional support, the effectiveness of back belts in the prevention of low back injuries has not been proven in the work environment.”

In recent years, manufacturing and warehousing companies have turned to new wearable technologies to help prevent MSDs. According to GAO, the two most-deployed, modern wearables are:

• Exoskeletons — Devices worn around the body to support a worker’s arms, legs, back, hand, or use of tools. Active exoskeletons use battery-powered motors to assist the muscles and augment the strength of the wearer. Passive exoskeletons use springs and dampers to support the wearer.

• Ergonomic sensors — Compact sensors designed to detect postures or motions that could cause injury. They measure the body’s orientation and use algorithms to analyze whether workers enter risky postures.

As interest in wearables grows, questions persist about whether they can “really” reduce injury.

GAO findings

The new report concludes that current data offer limited evidence showing the long-term efficacy of exoskeletons and ergonomic sensors to reduce injuries and improve worker safety:

• GAO examined publicly available studies of deployments of exoskeletons in the field AND in the lab. The agency did not find definitive, measurable safety results in the field. Lab studies, however, offer encouraging data that exoskeletons can reduce muscle strain and may, over time, help prevent injuries.
• GAO looked at studies involving ergonomics sensors. These devices offer diagnostic information about some injury risks. The trouble is the studies have not demonstrated that this information can improve worker safety. Multiple limitations, including sensor accuracy, are the hold up.

When deploying wearables, stakeholders have described challenges related to:

• Comfort and convenience,
• Identifying jobs for wearables,
• Identifying where wearables are a better solution than other controls,
• Limited data on efficacy,
• Data ownership and privacy,
• An evolving market, and
• Worker burdens.

Meanwhile, stakeholders continue to collect data and gather worker feedback. Stakeholders argue they need more time to resolve challenges. National consensus committees too are developing standards to address safe design and manufacture, risk management, and ergonomics.

Wearable regulations?

OSHA does not have regulations for wearables. Still, inspectors may note the use of wearables during a visit. The agency tells GAO that it has not received injury reports directly attributable to wearable use.

GAO’s report cautions that without regulations, wearables could enter the marketplace without safeguards. The report specifically points to safeguards to prevent data abuse or punitive use.

Key to remember

A government report offers mixed findings about the efficacy of wearables. Stakeholders say they need time to resolve challenges.

Letters of Interpretation

As clarified in an OSHA Letter of Interpretation (LOI) dated October 18, 1995, “When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred and a permit is required, regardless of whether there is an intent to fully enter the space.”

This definition of “entry” might seem to be too strict. Still, OSHA’s letter clarifies that there are situations where a partial entry would be hazardous: “Examples of situations where entry by only part of the body into a PRCS can expose an entrant to the possibility of injury or illness are as follows:

1. An entrant can possibly suffer a burn while reaching into a PRCS, which is so classified because it contains a thermal hazard.
2. An entrant can possibly fall into a below-grade PRCS while standing on a vertical ladder in the opening of the space, which is so classified because it contains an oxygen-deficient atmosphere.
3. An entrant can possibly become unconscious as result of his head accidentally entering a PRCS while they are reaching into a PRCS, which is so classified because it contains an oxygen deficient atmosphere.”

As another example, if the space contains a flammable or oxygen-enriched atmosphere, and if the activities during a partial entry could produce a spark or other ignition source, then a fire in the space could flash out of the opening and cause serious injuries to the employee.

OSHA’s guidance continues

This doesn’t necessarily mean you’d be fined if a permit wasn’t followed when someone reached a tank. OSHA’s guidance continues: “However, if entry by only part of the body does not expose the entrant to the possibility of injury or illness, then the violation may be considered a ‘de minimis’ violation.”

A de minimis violation is one in which a standard is violated, but the violation has no direct or immediate relationship to employee safety or health. These violations are documented but no citations are issued.

OSHA says examples of situations where entry by only part of the body into a PRCS would not expose an entrant to the possibility of injury or illness are as follows:

1. An entrant reaches through the opening of a horizontal PRCS, which is so classified only because it contains exposed live electrical parts ten feet from the opening.
2. An entrant puts his head through the opening of an overhead PRCS, which is so classified only because it contains unguarded rotating parts ten feet from the opening.

Also, consider a situation such as a worker reaching through a small grate to take a sample from a permitted space. The LOI further states, “If a part of the body were placed in an opening through which the worker could not pass into the permit-required confined space, no PRCS entry will have occurred.”

Keep in mind, however, that the employee would still need protection from any hazards involved in the task, but a permit would not be needed.

Key to remember

When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred, and a permit is required.

The intent of the standard

OSHA’s powered industrial truck (PIT) standard (29 CFR 1910.178) is intended to ensure the safe use of fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines. The standard outlines requirements for operational permits and certification.

And, though not specified in the standard itself, PIT operators must be at least 18 years old per federal child labor regulations.

License and certification Q&A

The OSHA PIT standard clearly defines requirements for training and certification. However, some licensing and certification information isn’t as clear. Here are some clarifications:

Q: Who can train, evaluate, and certify PIT operators?

A: OSHA requires in 1910.178(l)(2)(iii) that, “All operator training and evaluation shall be conducted by persons who have the knowledge, training, and experience to train powered industrial truck operators and evaluate their competence.” The OSHA standard doesn’t further define this requirement or set any specific or additional certifications.

Q: Does OSHA require PIT operators to have a valid driver's license?

A: Federal OSHA has no requirement that a forklift operator has a valid motor vehicle driver's license. Some states are more stringent, so check your local and state requirements to confirm.

Q: Does OSHA have regulations that impact an employee’s ability to operate PITs if they’ve received a DUI or suspended license?

A: Because OSHA doesn't require a valid motor vehicle driver's license, the status of that license doesn’t impact PIT operator permitting. Individual states or the employer may have policies that dictate otherwise.

Q: Are PIT drivers required to have their license on them when they are working?

A: Federal OSHA doesn’t require PIT operators to have a license or permit. However, some states such as Michigan do require this. Typically, in states that require a permit or license, the license must be “readily available.” Companies have the option to require the permit or license be carried with the operator.

Q: Are operators required to be trained on each manufacture of PIT model?

A: A June 15, 1999, OSHA letter of interpretation (LOI) clarifies that operators are to be trained and evaluated in the safe operation for the type of truck they’ll be assigned. Operators wouldn’t need additional training for same truck types but would need additional training when truck- or workplace-related training topics are different.

Q: Do PIT operators need to be recertified if they move from one state to another with the same company?

A: In an LOI dated October 1, 1999, OSHA states, "As long as the employer has a reasonable basis to believe that the third-party trainer is qualified and has a program that meets the requirements of the standard, it can rely on that trainer to conduct the training and evaluation of employees and can certify that these employees have been trained. However, the employer may need to provide additional training on site-specific or truck-specific matters." This shouldn’t require retraining for the same type of forklift as already certified; however, workplace conditions or other factors of the new work location may require training for forklift operation in the other state(s).

Operator Impairments

In addition to being properly trained and evaluated, OSHA expects employers to ensure physical capabilities. OSHA references the American National Standards Institute (ANSI) Standard B56.1-1969. Section 6 clarifies that, “Operators of powered industrial trucks shall be physically qualified. An examination should be made on an annual basis and include such things as field of vision, hearing, depth perception, and reaction timing."

Employers should consider OSHA PIT regulations and the General Duty Clause, ANSI standards, and the Americans with Disabilities Act (ADA) requirements when evaluating physical qualifications. In short, if a worker demonstrates the visual, auditory, and mental ability to safely operate PITs, he or she is permitted to operate them.

Keys to Remember

OSHA requires employers ensure the safe use of forklifts and other powered industrial vehicles. Employers must ensure operators have the knowledge, skills, and physical ability to safely operate PITs.