OSHA’s closing in on requiring PPE that actually fits ─ Will you be compliant?

Proposed legislation

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

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

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

Your restroom availability affects their health

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

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

Keys to remember

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

What’s considered fill material?

The regulations at 40 CFR 232.2 define fill material as any material placed in WOTUS that:

• Replaces any part of WOTUS with dry land, or
• Changes the bottom elevation of WOTUS.

Fill material excludes trash and garbage. Common examples of fill material are:

• Construction debris,
• Materials used to create a structure/infrastructure,
• Rock,
• Sand, and
• Soil.

Whenever fill material is dumped, placed, or deposited in WOTUS, a “discharge of fill material” occurs. Examples (according to 232.2) range from road fills to commercial and industrial site development fills.

The Environmental Protection Agency and the U.S. Army Corps of Engineers (USACE) jointly administer the Section 404 permit program. The USACE typically issues the permits unless a state or tribal program is authorized to issue them.

Does your project require a permit to fill?

To answer this question, you’ll need to address a few more questions:

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!

To-do before October 1

Get ready for renewal by taking the following steps now:

• File all your highway use tax returns that are due.
• Pay your taxes. The state will not issue a new certificate of registration if you owe back taxes. Before you apply to renew, make sure that you’ve paid all taxes due under any of the programs administered by the New York State Tax Department, including:
  • HUT,
  • personal income tax,
  • International Fuel Tax Agreement (IFTA),
  • sales tax, and
  • withholding tax.
• Create an online account if you do not already have one and you want to renew your credentials and pay online (https://www.oscar.ny.gov/).
• Make sure your vehicle registration information is correct and accurate. Review and update your information as soon as possible. Incorrect information will delay the processing of your certificates and decals.

Beginning October 1

Once the renewal period opens, renew your credentials and pay your renewal fees online with One Stop Credentialing and Registration (OSCAR).

Submit your renewal application by November 30, 2024, to make sure you receive your decals in time to place them on your vehicles before January 1, 2025.

If you are already enrolled in OSCAR, use your current OSCAR password to renew online.

If you are not enrolled, visit OSCAR, and select Enroll Now. You must have a United States Department of Transportation (USDOT) number and an employer identification number (EIN).

To renew your registration:

1. Visit the OSCAR website and select HUT Renewal from the Business Type drop-down.
2. Enter your information in the USDOT#, NYS Tax ID#, and Password fields, then select Log in.
3. If you have 300 or fewer vehicles, choose either:
   1. Renew all HUT/AFC Certificates of Registration to renew all your active current series permits, or
   2. Select HUT/AFC Certificates of Registration to renew specific permits.
4. If you have more than 300 vehicles, choose either:
   1. Renew all to renew all your active current series permits, or
   2. File renewal to renew select permits.

If you are unable to renew electronically, you may file Form TMT-1.2, Renewal Application for Highway Use Tax (HUT) and Automotive Fuel Carrier (AFC) Certificates of Registrations and Decals – 25th Series.

Key to remember: Take steps now to renew your NY HUT and ensure you receive your new decals before the current ones expire.

Here are your options for January/February

Carriers must display one or more of the following to travel through IFTA member jurisdictions for the first two months of 2023:

• A valid 2023 IFTA license and two IFTA decals issued by an IFTA member jurisdiction (you filed on time and received your new credentials in time for 2023); or
• A valid 2022 IFTA license and two IFTA decals from an IFTA member jurisdiction as long as the renewal application has been filed for 2023 (you filed on time but didn’t receive your new credentials in time for 2023); or
• A valid trip permit issued by the IFTA member jurisdiction through which they are operating.

Remember, IFTA license renewals for 2023 must be filed with your base jurisdiction before the end of 2022. The two-month grace period is for display of renewal credentials, not to file your renewal application for those credentials.

For early filers

Carriers renewing credentials may operate with the new 2023 IFTA decals and license two months prior to the effective date shown on the credentials. These carriers must still file a fourth quarter report for 2022, including all operations for that quarter.

Credentials 101: IFTA license and decals

Any person or carrier based in an IFTA member jurisdiction operating a qualified motor vehicle(s) in two or more member jurisdictions is qualified to license under the IFTA program. Applications request basic information about the carrier and its operations and must be submitted with the applicable license and/or decal fees. Fees vary by jurisdiction.

The IFTA license is valid for the period of January 1 through December 31. Each IFTA license must be renewed for the next calendar year. The base jurisdiction will notify its licensees of the renewal requirements.

If the applicant meets all IFTA application requirements, the base jurisdiction will issue the IFTA license and decals. The license contains an account number assigned by the base jurisdiction. This account number is then used for reporting all IFTA activity of the licensee.

The licensee is required to make legible copies of the license and carry one copy in each vehicle. Since January 2019, the license may be carried electronically. Failure to display a copy of the license may subject the vehicle operator to the purchase of a trip permit and/or a citation. Each licensee is issued two vehicle identification decals for each qualified vehicle in the fleet. Decals must be placed on both sides of the vehicle’s cab (passenger and driver side). Failure to display the identification decals in the required locations may subject the vehicle operator to the purchase of a trip permit and a citation.

Key to remember: For seamless operation into the new calendar year, file your IFTA renewal application with your base jurisdiction well before December 31, 2022.

For-hire vs. private

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

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

For-hire operating authority

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

The most common types of authority are:

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

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

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

One size does not fit all

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

Permanent authority required

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

Getting it right

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

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.

5 tips to help employees handle changes

Even though change is inevitable, people are often uncomfortable with it. Humans crave a certain level of predictability and consistency in their daily lives, and when that flow gets disrupted, it can cause stress, anxiety, skepticism, and discord.

Here are five ways employers can help their employees face changes in 2025:

1. Explain why there’s a change. It’s hard for people to buy into something if they don’t know the “why” behind it. Be as transparent as possible and explain it using plain language, not industry jargon. Be prepared to repeat the message as needed. Once might not be enough for employees to absorb the information, or they may have questions along the way.
2. Lead with empathy. Change can bring about fear of the unknown and saying, “Don’t worry about it,” won’t help. Leaders have probably had time to process the information, but the news could cause big emotions in employees hearing about it for the first time. Be empathetic, saying something like, “I know this seems scary.”
3. Include employees in the process. As employees come to grips with the change, they might have questions, concerns, or ideas to share. Encourage their engagement and seek out their input. The more involved they are, the better.
4. Create a positive vision. Whatever the change is, it’s likely a means to a better end, such as higher profit margins, streamlined benefits, or increased productivity. This is where a strategic leader shines by creating that picture of a better tomorrow for employees.
5. Note the wins. As the company moves forward with the change, remember to occasionally highlight the positives along the way so that employees see that their buy-in was worth it. Progress should be communicated in a way that’s tailored to the specific workforce. The point is to call out any rewards the change is bringing and that the company is moving in the right direction towards the future.

Key to remember: Is a workplace change coming in 2025? Follow these five tips to help get employees on board.

Rope or chain

The regulation at 1910.29(b)(15) clarifies that ropes used for rails must be inspected as necessary to ensure they continue to meet strength requirements. This shows that OSHA allows using ropes or chains for loading areas, docks, and other locations where removable sections are needed.

Among other things, the material must be at least one-quarter inch in diameter. The top rail must be able to withstand 200 pounds of force without stretching lower than 39 inches. A top rail must be 42 inches, plus or minus 3 inches, so the minimum height is 39 inches. Since the regulation requires a mid-rail, a single rope or chain will not suffice, but two or more strands could meet the guardrail standards.

Less than four feet

A guardrail or other fall protection is required for any unprotected edge of four feet or higher. Lower docks or platforms (say, 43 inches high) do not require fall protection. Of course, a fall from that height could cause serious injury so employers should have some protection or warning in place. Note that most loading docks are more than four feet high and will need fall protection. For related information, see our article Why you need guardrails on open dock platforms.

Again, ropes or similar barriers could be an option. At heights below four feet, the materials would not technically need to meet the strength requirements for guardrails, but a stronger system would offer better protection. Still, even using brightly colored ropes as a visual warning could help prevent an employee from inadvertently stepping off the edge.

Note that California may require rails for platforms 30 inches or higher.

No guardrail required?

The federal regulations list only three situations when employees could be four feet or more above a lower level, but do not need guardrails or other fall protection. They are:

• Dockboards used only with motorized equipment per 1910.28(b)(4);
• Repair or service pits for vehicles per 1910.28(b)(8); and
• Work on low-slope roofs in specific circumstances per 1910.28(b)(13).

Even though guardrails or other fall protection is not required, employers still need to take preventative measures.

Workers using the dockboards as described in the regulation must receive training on fall hazards and mitigation measures under 1910.30.

For service and repair pits, only employees trained under 1910.30 may approach within six feet. The employer must also have floor markings and/or warning lines at least six feet from the edge of the pit, as well as signs reading “Caution – Open Pit.”

For employees on low-slope roofs, the exception from fall protection applies only when:

1. Work will be performed at least 15 feet from the edge,
2. The job qualifies as “infrequent and temporary,” and
3. The employer enforces a rule prohibiting employees from going within 15 feet of the edge unless they’re using fall protection.

The regulation does not define the terms “infrequent” and “temporary” but OSHA clarified that temporary tasks usually require an hour or two at most, and infrequent means the task is performing only on occasion, such as monthly. An example would be replacing a filter on a roof-mounted AC unit once per month.

Key to remember: A guardrail is usually a solid structure but can include rope or chain when necessary. Fall hazards under four feet or hazards that meet specific regulatory exceptions do not require guardrails.

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.

Alternative glove selection for COVID-19

Here’s a summary of glove types and the protection given to help evaluate alternatives.

Butyl gloves protect against a variety of chemicals such as peroxide, highly corrosive acids, strong bases, alcohols, aldehydes, ketones, esters and nitrocompounds. Butyl gloves also resist oxidation, ozone corrosion and abrasion, and remain flexible at low temperatures. However, they do not perform well with aliphatic and aromatic hydrocarbons and halogenated solvents.

Natural (latex) rubber gloves have good elasticity and temperature resistance, and resist abrasions well. They protect against most water solutions of acids, alkalis, salts, and ketones. Latex gloves may cause allergic reactions and may not be appropriate for all employees. Hypoallergenic gloves, glove liners, and powderless gloves are possible alternatives for employees who are allergic.

Neoprene gloves protect against hydraulic fluids, gasoline, alcohols, organic acids, and alkalis. Their chemical and wear resistance are generally better than gloves of natural rubber.

Nitrile gloves are intended for jobs requiring dexterity, and they stand up even after prolonged exposure to substances that cause other gloves to deteriorate. They offer protection when working with greases, oils, acids, caustics, and alcohols but are not recommended for use with strong oxidizing agents, aromatic solvents, ketones, and acetates.

Applying exemptions

Employers with 10 or fewer employees do not need to maintain a 300 Log, but this exemption counts all employees at all locations. If an employer has three locations, each with four employees, it has more than 10 employees and the size exemption will not apply.

The other exemption is based on each establishment’s North American Industry Classification System (NAICS) code. Employers might have some establishments that must keep a 300 Log and others that do not, like a manufacturing facility that maintains a 300 Log and an administrative office that is exempt.

In some cases, an establishment’s activities fit under more than one NAICS code, like a manufacturing plant with a distribution warehouse. OSHA advises using the code that either generates the most revenue or has the most employees, whichever the employer deems most applicable. Employers should check their workers’ compensation coverage to see which code they use.

For more information, see our article Which NAICS code should you use for OSHA?

Traveling and remote workers

If an employee has a recordable incident while visiting another establishment, the employer must record the case on the 300 Log for the establishment where the incident occurred, even if the employee normally works elsewhere.

However, if an employee has a recordable incident and is not at an establishment (such as traveling), the employer must record the case on the 300 Log for the establishment where the employee normally works.

Remote workers must be linked to a fixed establishment, typically the location from which they are supervised or receive job assignments. Recordable incidents to remote workers must be recorded on the 300 Log of the establishment to which they are linked. Employers also count remote workers as employees of the linked location, even if they work in another state.

Annual summaries

On February 1, each establishment that maintains a 300 Log must post a 300A annual summary for the previous calendar year. This is required even if the location has 10 or fewer employees, and even if the establishment had zero recordable incidents. Employers cannot combine multiple establishments on a 300A (although short-term establishments can be combined).

If some employees split their work time between locations, employers may distribute their hours worked between locations. However, if someone spends only a small amount of time visiting various locations, the employer may count all hours worked at the primary or linked location. Usually, this would not significantly impact the total hours worked for an establishment.

For more information, see our article Completing the 300A: Tips for the mathematically challenged.

OSHA requires a posting a physical copy of the 300A in the workplace until April 30, but employers may also post the summary on a company intranet for remote workers. OSHA does not require sending the 300A to remote workers who never visit the site, although California does require that.

Key to remember: Employers with multiple locations should confirm that the NAICS code for each location is correct, verify that incidents to traveling or remote workers are properly recorded, and ensure that each covered establishment posts a 300A as required.

Choosing the correct year

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

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

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

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

Choosing the correct code

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

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

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

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

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

For example, code 551114 gives examples as follows:

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

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

Counting employees

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

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

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

OSHA recordkeeping requirements

OSHA's recordkeeping requirements found under 29 CFR 1904 are designed to ensure that employers maintain accurate records of work-related injuries and illnesses. Additionally, the data helps OSHA, and the employer, identify and correct workplace hazards, preventing future incidents.

Recording: Employers with more than 10 employees, except those in partially exempt industries, are required to record work-related injuries and illnesses using OSHA forms, including the following:

• Form 300: Log of Work-Related Injuries and Illnesses.
• Form 300A: Summary of Work-Related Injuries and Illnesses, which must be posted annually from February 1 to April 30.
• Form 301: Injury and Illness Incident Report, detailing each incident.

Additionally, employers must retain these records for a minimum of five years and make them available to employees, former employees, and their representatives upon request.

Reporting: Certain severe injuries and illnesses must be reported directly to OSHA within specific time frames: fatalities within 8 hours, and in-patient hospitalizations, amputations, or losses of an eye within 24 hours.

Electronic submission: Some employers are also required to electronically submit their forms annually to OSHA based on establishment size:

• 250+ employees must electronically submit their OSHA 300A annual summary data.
• 20-249 employees in certain industries must electronically submit OSHA 300A annual summary data.
• 100+ employees in certain industries must electronically submit data from their OSHA 300 log, 301 incident report forms, and 300A annual summary.

MSHA recordkeeping requirements

Similar to OSHA, MSHA's requirements, found under 30 CFR Part 50, are intended to assist employers in maintaining accurate records of workplace injuries and illnesses, as well as identifying and addressing hazards.

However, requirements are tailored to the unique risks and operational characteristics of the mining industry and include the following:

• Reporting: All accidents, injuries, and illnesses must be reported using MSHA Form 7000-1 within 10 working days of the incident.
• Record retention: Reports must be kept at the mine or nearest mine office for at least five years.
• Multiple injuries: Separate forms must be completed for each miner injured in the same incident.
• Quarterly reports: Mine operators must submit MSHA Form 7000-2 quarterly, detailing employment, coal production, and injuries/illnesses. Deadlines are April 15, July 15, October 15, and January 15.

Clarifying the relationship

Both OSHA and MSHA are under the Department of Labor and provide safety and health regulations for workers. However, OSHA's jurisdiction spans most private sector employers and employees, as well as some public sector workers, covering a wide array of industries. In contrast, MSHA specifically regulates surface and underground mining operations.

This division of responsibilities can sometimes create confusion, but an interagency agreement established when MSHA was created in the 1970s clarifies the authority and coordination between OSHA and MSHA, which includes:

• Jurisdiction: MSHA's authority oversees all aspects of mining operations. This includes the lands, structures, facilities, equipment, and other properties used in mining and covers both surface and underground mines.
• Regulatory gaps: If MSHA does not have specific regulations for a particular safety hazard, OSHA regulations can be applied ensuring no gaps in protecting workers. For example, if a mining operation involves activities like construction or maintenance that are not explicitly covered by MSHA, OSHA standards may be enforced to address those hazards.
• Collaboration: OSHA and MSHA collaborate on rulemaking, policy development, and training programs to ensure consistent safety standards across industries. They share information, conduct joint inspections, and address emerging safety and health issues, ensuring regulations keep pace with technological advancements and industry changes. This unified approach helps avoid conflicting regulations and promotes worker safety.

Key to remember: OSHA covers a broad range of workplaces and MSHA focuses specifically on mining operations. While both agencies strive to work together seamlessly, they do have differing recordkeeping requirements that must be followed to ensure compliance and safety in their respective workplaces.