Preparing for a hazmat audit: Key insights and expectations

More than just rules

The order covers not only final and proposed regulations but also “notices of inquiry,” any type of notice of proposed rulemaking, and guidance documents that interpret existing statutes or regulations.

The order will be overseen by the director of the White House Office of Management and Budget (OMB), a position to which Trump has nominated Russ Vought.

OMB wastes no time

The OMB, which must approve most rulemaking activities, has already sent numerous pending rules back to the agencies for review. Among the rules withdrawn on January 21, 2025:

• A proposal to update the new-driver training regulations to address sexual harassment and the safety of women truck drivers and vulnerable road users, such as pedestrians and bicyclists.
• A proposal to amend the Federal Motor Carrier Safety Regulations to account for the use of trucks and buses equipped with automated driving systems.
• A proposal from the Department of Health and Human Services to implement hair testing for federal workers.
• Proposed railroad noise-emission enforcement rules from the Federal Railroad Administration.
• A proposed air-emissions reporting requirement from the Environmental Protection Agency (EPA), as well as proposed EPA standards for emissions from PFAS manufacturing facilities.

In addition, the Occupational Safety and Health Administration withdrew a proposed rule on infectious diseases on January 14 and its COVID-19 healthcare rule on January 15, prior to the inauguration.

President Trump issued a similar regulation freeze upon his 2017 inauguration. Soon after, he announced a “two for one” order requiring agencies to eliminate two regulations for every new one issued.

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.

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.

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!

‘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.

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.

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 a split specimen?

When a driver gives a urine sample for the purposes of DOT drug testing, the collector will split the specimen into two separate containers. The container labeled as the primary specimen will be tested by the lab; the container labeled as the secondary specimen is only tested if the driver requests that it be tested after the primary specimen is verified as positive, adulterated, or substituted.

How does a driver request that the split specimen be tested?

When the medical review officer (MRO) contacts the driver about a verified positive, adulterated, or substituted test, the MRO will inform the driver of the driver’s right to have the split specimen tested. The driver then has 72 hours from the time of notification to request via the MRO that the split specimen be tested.

What happens while the split specimen is being tested?

Because the driver’s primary specimen was verified positive, adulterated, or substituted, the motor carrier should have already pulled the driver from performing safety-sensitive functions. The driver cannot resume driving while the split specimen is being tested. Whether the driver is reassigned to a non-driving position or is suspended depends on the motor carrier’s drug and alcohol policy.

Who pays for the split specimen to be tested?

The regulations specify that the carrier cannot delay lab testing in order to collect payment from the driver. The secondary specimen should be submitted for testing as soon as the driver requests it, and motor carrier will be billed through the carrier’s lab account. In some cases, the motor carrier can seek reimbursement from the driver for full or partial costs of the split-specimen test.

Is the drug violation reported to the Drug and Alcohol Clearinghouse right away, or does the MRO wait for the results of the test on the secondary sample?

The MRO will report the positive, adulterated, or substituted drug test result to the Drug and Alcohol Clearinghouse within two business days of verifying the result for the primary specimen. Once the MRO receives the lab results for the secondary sample, one of three things happens:

1. The secondary test result reconfirms the primary test result. The violation stands and remains in the Clearinghouse.
2. The test of the secondary sample fails to reconfirm any of the original findings. The test will be canceled, and the MRO will change the result in the Clearinghouse within one business day of receiving the secondary test results.
3. The test of the split specimen does not reconfirm the original result but identifies something suspicious in the secondary sample. The regulations in 40.187 spell out a variety of situations that require the driver to be tested again, such as if the secondary sample is invalid or if part of the original result is reconfirmed but the sample also tests as substituted or adulterated. If any of these complex scenarios applies, the MRO will direct the carrier’s designated employer representative (DER) to immediately send the driver for another collection under direct observation. If that test result is negative and is not adulterated or substituted, the MRO will change the result in the Clearinghouse within one business day of receiving the secondary test results. Otherwise, the violation will stand and remain in the Clearinghouse.

Key to remember: Dividing a urine specimen into two samples allows for a driver to request that the secondary sample be tested if the first specimen indicates drug use. This is an important part of the driver’s right to due process.

The DOL chimes in

In an interpretive opinion letter released on January 14, 2025, the U.S. Department of Labor (DOL) said that employers should treat state paid leave the same.

Employers need to keep some information in mind:

• Designating leave: When employees take leave under a state paid family or medical leave law if the leave is also covered by the FMLA, employers must designate it as FMLA leave and give the employee a designation notice, which should include the amount of leave to be counted against the employee’s FMLA leave entitlement.
• Receiving state pay: During FMLA leave, when employees receive pay from a state family or medical leave law, the FMLA “substitution” provision does not apply to the part of leave that is paid. As a result, employees may not use PTO, and employers may not require it when leave is paid by state law.
• Supplementing pay: If employees are receiving pay through state paid family or medical leave that doesn’t fully pay for their FMLA-covered leave, and employees have available PTO, employers, and employees may agree, where state law permits, that employees may use their PTO to supplement their pay under a state leave law.
• Qualifying conditions: If employees use state paid family and medical leave for reasons that don’t qualify as FMLA leave, employers may not count the leave against the employee's FMLA leave entitlement. If, for example, a state paid family leave law allows for paid leave to care for a family member with a medical condition that is not an FMLA-qualifying serious health condition or serious injury or illness, employers may not count the leave taken under such circumstances against the employee’s FMLA leave entitlement.
• Exhausting leave: If employees’ leave under a state paid family or medical leave program ends before the employees have exhausted the 12 weeks of FMLA leave, employees are still entitled to the FMLA protections. If, therefore, employees use up all the state paid leave, after that, the FMLA substitution provision would apply and employees would be able to elect, or the employer would be able to require the employee, to substitute employer-provided accrued paid leave.

Key to remember: Employers may not require employees to use their accrued paid time off when employees are receiving pay under a state paid leave law. Employees are also not allowed to do so. Employees, however, might be able to use PTO to round out their income and bring it to full pay.

Which states require captive-audience meeting postings?

The posting requirements for captive meeting laws vary by state:

Illinois: Post information about the Worker Freedom of Speech law as of January 1, 2025.

Maine: Display information about the state’s Captive Audience statute after a standardized posting is made available by the state.

Minnesota: Display the Employer-Sponsored Meetings posting from the state.

New York: Post the text of the state’s Discrimination Against Engagement in Certain Activities law.

Oregon: Display the Captive Audiences poster from the state.

Washington: Display the text of the state’s Free Choice Act or a posting from the state when one is made available.

Alaska, California, Connecticut, Hawaii, and Vermont have captive-audience meeting laws, but do not require employers to display related information .

Key to remember: Employers in some states need to display a captive-audience meeting posting to make employees aware of their rights.

Which date should be on our posters?

In some cases, employers need to display only the latest version of a poster, the one with the most recent revision date. In other cases, multiple versions of a poster will be complaint, and an employer can display either the most recent version or a previous one.

Here are revision dates to look for on the federal postings on your wall:

• Employee Rights Under the Fair Labor Standards Act (FLSA): 04/23
• Employee Rights Under the Family and Medical Leave Act (FMLA): 04/23, 04/16, or 04/13
• Know Your Rights: Workplace Discrimination is Illegal: 06/27/2023
• Employee Rights: Employee Polygraph Protection Act (EPPA): 02/22 or 07/16
• Job Safety and Health: It’s the Law (Occupational Safety and Health Act (OSHA)): 2019 (previous versions also acceptable)
• Your Rights Under USERRA (Uniformed Services Employment and Reemployment Rights Act): 04/2017 (previous versions also acceptable)

Where should posters be displayed?

In addition to displaying the most recent version of a poster, it is important to place the poster in a location where it is easily visible and readily accessible to employees. This could be in a hallway near a common entrance, in a cafeteria or break room, or near a time clock.

In a large building with multiple entrances or break rooms, more than one set of posters may need to be displayed. When a company has multiple buildings on a large corporate campus, posters must be placed in each building where employees are reporting to work.

What happens if I don’t display labor law posters?

If labor law posters are not properly displayed, a company may face a fine or the increased risk of a lawsuit from employees who were not made aware of their rights.

Higher DOL posting penalties took effect on January 15, and the Equal Employment Opportunity Commission (EEOC) is expected to raise the penalty for the Know Your Rights posting soon. The current maximum posting penalties are:

• FMLA: $216 for each separate offense
• Job Safety and Health (OSHA): $16,550 for each separate offense
• EPPA: $26,262 for any violation of the law (including a posting violation)
• Know Your Rights: $680 for each separate offense

The maximum fine is more likely to be levied in cases of willful noncompliance or in conjunction with other penalties.

State and sometimes local postings must also be kept up-to-date. Fines for non-compliance for these posters vary.

Key to remember: Failing to display the correct labor law posters can be a costly mistake. One way to ensure that the right posters are displayed is to check the date on the poster.

Employer responsibility

The employer decides if a prospective trainer has the necessary knowledge, training, and experience to effectively deliver the training and evaluate performance. The trainer’s background might include attending certain courses, but OSHA does not require taking a specific course or obtaining a particular certification. The trainer must also know the regulations, the truck-related topics, and the workplace-related topics.

In addition, a trainer must have experience operating the types of trucks and attachments that trainees will use. A letter of interpretation dated July 23, 2003, noted that the “experience” requirement generally means the trainer has operated the same type of truck. If operators will use attachments, the trainer must have used that type of attachment.

Some employers use more than one trainer, such as one person for the classroom portion and another for the hands-on training and operator evaluation. That’s perfectly acceptable. For related information, see our article Want to provide forklift training in-house? No problem, here's how!

How many citations?

During fiscal year 2024, OSHA issued nearly 2,500 citations under the powered industrial truck standard, many of which relate to operator training. OSHA does not publish the specific paragraphs cited, but we have that data from several years ago. Of the thousands of 1910.178 citations, OSHA issued only one citation under the trainer qualification paragraph. Very likely, the trainer had never used the type of truck or attachment and therefore lacked the required experience.

As noted, however, OSHA frequently issues citations related to operator training. Those include failing to cover all required training topics, or simply an OSHA officer’s observation of unsafe operation, which suggests a training shortfall. Citations for inadequate training could mean that the trainer qualifications were lacking, or that operators simply did not remember their training. Either way, a violation (and therefore a safety hazard) has occurred.

Trainer evaluations

We get a lot of questions on the required qualifications for forklift trainers. As noted, the regulations are somewhat vague and circular. That may be one reason OSHA rarely cites employers for unqualified trainers. However, if operators are not learning, remembering, or following their training, you might need to take a closer look at your operator training and evaluation program – along with a look at the trainer. For related information, see our article Considerations when designing practical training for PITs.

Evaluate your training materials, program, and trainer(s) to ensure that you’re delivering comprehensive training and that operators actually follow their training. If an operator remembers the training but ignores the rules, that’s an operator issue. However, if an operator cannot remember what was covered in training, or if a topic wasn’t covered at all, that’s a trainer or training program issue.

Key to remember: The employer determines whether someone is qualified to train forklift operators. Although OSHA rarely cites for lacking qualifications, OSHA does frequently hold employers responsible for training shortcomings.

OSHA targets warehouses for inspection

Soaring incidence rates in these operations caught OSHA’s attention. As we reported last year, the federal agency issued CPL 03-00-026 in July 2023. This is the NEP on Warehousing and Distribution Center Operations. State-plan states, like California, Michigan, and Virginia, for example, had until mid-January 2024 to put their emphasis programs in place. The nationwide inspection program continues to target:

• Warehousing and distribution operations,
• Mail processing and distribution centers,
• Parcel delivery and courier services, and
• Certain high-risk retail operations.

Also, the NEP explains that OSHA officers are to look out for “common” safety hazards, involving:

• PIT operations,
• Materials handling/storage,
• Walking-working surfaces,
• Means of egress,
• Fire protection,
• Ergonomics, and
• Heat.

Earlier data reveal that the top three most-cited standards under the NEP were:

• PITs, 29 CFR 1910.178;
• Exit Route Maintenance, Safeguards, and Operational Features, 29 CFR 1910.37; and
• Electrical, 29 CFR 1910 Subpart S.

Ironically, the NEP made no mention of electrical safety standards! That means OSHA officers are going where the violations take them.

OSHA nudged to do MORE warehouse inspections

A September 2023 report from the Department of Labor Office of Inspector General (OIG) said OSHA needs to do more to effectively address high injury and illness rates occurring in warehouses. This was a gut punch since OSHA had just issued its warehouse NEP a few months earlier. Yet, the OIG assessment may pressure OSHA to inspect even more warehouses going forward.

Exclusive data on the warehouse NEP

According to enforcement data received by J. J. Keller® Compliance Network, it looks like OSHA is serious about carrying out the NEP inspections AND handing out stiff penalties. After a 90-day outreach period, inspections under the warehouse targeting program began full steam in mid-October 2023. By September 8, 2024, OSHA and its state-plan states inspected 1,416 covered workplaces. That’s about 140 per month!

In that period the total proposed penalties for the NEP were over $5.87M with a penalty rate of almost $4,150 per inspection. Here’s the kicker — if a cited employer is caught violating similar requirements within the next five years at ANY of its locations, the new citation could have a penalty that reaches the maximum for a repeat violation. That maximum is over $161,000 per citation and increased annually for inflation!

Keep in mind that the NEP is not over. It is a three-year program set to last through July 2026. Don’t be surprised if OSHA extends the program. That's because NEPs often get an extended lifespan, especially if the programs are effective and align closely with the agency's continued priorities.

OSHA’s new priority shift

PIT hazards are now part of an agency priority goal for fiscal year (FY) 2025, which runs October 1, 2024, to September 30, 2025. This is according to the fine print in the OSHA budget request for that year. For the record, FY 2024 was a baseline for how many PIT hazards OSHA officers can abate in one year for the industries covered by the NEP.

The goal for FY 2025 is to top that figure by 5 percent! Officers will be incentivized to do these inspections because they’re “weighted” more in the eyes of the agency!

PITs, of course, include forklifts, order pickers, powered pallet jacks, and similar powered equipment. They’re regulated at 29 CFR 1910.178 in general industry.

Interestingly, OSHA also intends to publish a final rule to update the consensus standard references in the PIT standard. However, this rulemaking has not yet reached the Office of Management and Budget, so it may be several months before we see it in the Federal Register. You can read the proposed version in the February 16, 2022, Federal Register.

Get further background in related articles

Check out the articles related to this one, including:

• Temp worker bulletins zero in on ergonomics and warehousing [11/06/2023];
• Warehousing safety: OSHA receives gut punch from OIG [10/11/2023];
• Warehouses and retailers: Only weeks until OSHA unleashes NEP inspections [7/14/2023 and 8/20/2023];
• Warehousing safety crackdown: Beating OSHA to the punch [6/14/2023]; and
• OSHA plotting even more inspections for warehousing nationwide [5/11/2023].

Key to remember

OSHA enforcement continues to target industries covered by the warehouse NEP. Yet, inspectors now have more incentive to do so with an agency priority goal to increase the safe operation and use of PITs in these industries in FY 2025.

Which regulatory Parts changed?

Changes made to the Code are outcome-focused instead of requirement-focused so employers can set compliance goals and objectives that suit their workers and establishments.

• Part 27: Violence and Harassment — includes provisions for addressing workplace violence as well as retail fuel and convenience store worker safety. Updates included:
  • Consolidating violence and harassment prevention plans, policies and procedures requirements to remove duplication, and shifting health and safety focus to outcomes rather than prescriptive steps; and
  • Adding definitions for “convenience store” and “retail fueling outlets”.
• Part 33: Explosives — promotes labour mobility and inter-provincial cohesion, and incorporates industry best practices. Updates included:
  • Bringing technical standards up to date;
  • Ensuring requirements reflect best practices for health and safety, including introducing definitions for technical terms;
  • Improving flexibility by changing health and safety prescriptive requirements to outcomes, where appropriate;
  • Aligning roles and responsibilities within the OHC Act.
  • Recognizing the unique requirements for perforating guns; and
  • Removing duplicated information.
• Part 37: Oil and Gas Wells — clarifies some requirements and incorporates industry best practices. Updates included:
  • Bringing technical standards up to date;
  • Ensuring requirements reflect best practices for health and safety, including introducing definitions for technical terms;
  • Improving flexibility by changing health and safety prescriptive requirements to outcomes, where appropriate;
  • Aligning roles and responsibilities within the OHC Act; and
  • Removing duplicated information.

What’s my deadline?

Employers are being given a transitional period between December 4, 2024 and March 30, 2025. The final effective date for compliance with the updated provision is March 31, 2025.

Key to remember: Updates have been made to several Parts of Canada’s Occupational Health and Safety (OHS) Code to clarify health and safety expected outcomes.

Developing and maintaining EH&S programs

Written safety plans (or programs) are records of how an establishment is protecting or plans to protect employees overall for a safety or health hazard. Writing an effective safety and health plan helps keep your training program organized and shows a good faith effort to comply with the regulations. Written safety plan requirements are found throughout 29 CFR 1910 for general industry and 29 CFR 1926 for construction and cover a number of different work operations and hazards. Because written plans are required for specific hazard topics on a standard-by-standard basis, their scope depends on the scope of the standards that carry written plan provisions. Most regulations have a scope and applicability section(s), so if you find that the regulation applies, check if there’s a written plan requirement.

Be sure to review your written plans when there are changes to work processes or procedures, and at least annually to ensure they’re working the way you intend. Your plan may look great on paper but if it’s not being put into practice, this is a compliance trouble spot!

Keeping up with regulatory changes

Although OSHA’s regulations generally move slowly through the pipeline, state-plan states tend to see more frequent regulatory activity, particularly California, Washington, and Oregon. Environmental regulations are much more active not only at the federal level but at the state and local levels. Some ideas for keeping on top of changes:

• Visit state and federal regulatory agency websites, such as osha.gov, and follow them on social media (i.e., LinkedIn). Most have an active social media platform to keep the public informed. Set a calendar reminder to make it a regular habit.
• Join industry associations and your local safety council. These groups host meetings and events that provide regulatory updates and best practices.
• Complete your J. J. Keller® Compliance Network profile builder. As a subscriber of this platform, you have an opportunity to curate the content you’re alerted to. This allows you to select your focus and regulatory areas that most impact your role and responsibilities.

Training and evaluating workers

When companies invest in training, they not only prioritize the health and safety of their employees but create a culture of safety awareness and compliance.

Although OSHA doesn’t require that you give a quiz after training, it’s a great way to determine if employees understand the material. Follow-up observations, safety incident statistics, and safety observation reporting are among ways to ensure employees apply training on the job.

Keep training applicable to the job. The best safety training is where employees can see, feel, and understand how the regulation and company rules can help to keep them safe and injury free.

Building training time into an already busy workday can be a challenge, particularly when you have multiple locations. Are you training too many employees? While more than 70 general industry regulations have training requirements, it’s likely that not all of them apply to work your employees are performing. Likewise, if there’s not an annual training requirement it may not be necessary to repeat your entire training program, but instead use toolbox talks or brief refresher trainings throughout the year.

Key to remember: To address the top challenges faced by EH&S professionals, focus on developing and maintaining effective EH&S programs, staying updated with regulatory changes, and providing relevant training and evaluation for workers.

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.

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.