Reluctant employees: Chemical PPE

What is used oil?

The EPA defines used oil as any petroleum-based or synthetic oil that has been used and is contaminated by physical or chemical impurities. Common sources of used oil in industrial operations include:

• Motor oil and lubricants from vehicle maintenance
• Hydraulic fluids used in heavy machinery
• Metalworking fluids and coolants
• Compressor oils used in air compression systems

According to EPA regulations (40 CFR Part 279), used oil is presumed to be managed under the less stringent used oil management standards unless it meets hazardous waste criteria.

Used oil becomes hazardous waste if:

• It is mixed with hazardous waste (e.g., solvents or heavy metals)
• It contains more than 1,000 parts per million (ppm) of total halogens, unless proven otherwise, or
• It is disposed of improperly, leading to environmental contamination.

If used oil is classified as hazardous waste, it must be managed in accordance with the applicable solid and hazardous waste requirements.

EPA requirements for used oil disposal

The EPA requirements for used oil consist of three different aspects, as outlined below.

1. Storage Requirements

Use leak-proof tanks and containers made of durable, non-earthen materials (e.g., steel, plastic, or concrete). Label all used oil containers with the words "Used Oil" to prevent misidentification. Prevent leaks and spills by using secondary containment systems and regularly inspecting tanks. Never mix used oil with hazardous waste unless authorized.

2. Transportation and Disposal

Used oil generators may transport up to 55 gallons of used oil to a registered collection center without an EPA ID number. If contracting a used oil transporter, ensure they have an EPA Identification Number.

Used oil must be:

• Recycled or re-refined into new oil.
• Burned for energy recovery in approved furnaces or boilers.
• Disposed of at an authorized hazardous waste facility if deemed hazardous.

3. Spill Prevention and Cleanup

Facilities storing large amounts of used oil must have a Spill Prevention, Control, and Countermeasure (SPCC) Plan. SPCC plans establish procedures, methods, and equipment requirements to prevent oil from reaching waterways, and to contain discharges of oil.

Any spills must be cleaned up immediately, and absorbent materials must be disposed of properly. Rags and shop towels contaminated with hazardous materials may be classified as hazardous waste.

OSHA regulations for handling used oil

While the EPA focuses on environmental compliance, OSHA (29 CFR Part 1910) regulates worker safety when handling used oil. Key OSHA requirements include:

1. Personal Protective Equipment (PPE)

Workers handling used oil must wear gloves and protective clothing to prevent skin exposure. Safety goggles or face shields are also important to avoid eye contact.

2. Hazard communication (HazCom) program

Employers must label all used oil containers with appropriate hazard information and train employees on safe handling procedures and emergency response.

3. Fire and Explosion Safety

Always store used oil away from ignition sources to prevent fire hazards. Ensure storage areas are ventilated to avoid vapor buildup.

State-Specific used oil disposal regulations

Many states have stricter used oil regulations than federal laws. For example:

• California classifies used oil as hazardous waste unless it meets specific recycling criteria.
• Texas requires additional storage permits for large generators.
• New York mandates annual reporting on used oil disposal activities.

To ensure compliance, check with your state’s environmental agency for state-specific used oil disposal rules and whether used oil is considered hazardous. Additional permits for transporting or processing used oil may be necessary.

Staying compliant with used oil disposal requirements

Ensuring compliance with EPA, OSHA, and state laws is essential for safety managers and shop supervisors handling used oil. By following proper storage, transportation, and disposal practices, businesses can reduce environmental risks, improve workplace safety, and avoid costly fines.

Key to remember: By staying informed and proactive, your facility can maintain safe, sustainable, and compliant used oil management practices.

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.

Video supports investigative report

The 14-minute video, “No Detection: Explosion …,” follows a June 2023 investigation report. When the 56-page report came out, CSB Chairperson Steve Owens said, “Our investigation found that [the company] did not have an effective program in place to assess potential hazards in its propylene process and did not have a mechanical integrity program or written operating procedures.”

The incident was compounded by emergency planning failures, says CSB. Owens argued, “This tragic incident was made even worse due to the lack of emergency response training for employees at the facility.”

Deadly incident

CSB explains that a degraded and poorly crimped rubber welding hose disconnected from its fitting inside a coating booth. That prompted a release of propylene, a flammable vapor.

By the time workers arrived at the facility the early morning of January 24, 2020, an explosive concentration of propylene had formed inside the building. As workers entered and turned on the lights, the vapor ignited, triggering an explosion. It:

• Killed two workers,
• Injured two other workers,
• Fatally injured a nearby resident, and
• Damaged hundreds of structures.

The board’s investigation later found that the company had:

• Disconnected gas detectors from a computer control system. This meant the automatic gas detection shutoff system would not alert operators to a leak. It also would not start up exhaust fans or trigger two shutoff valves to stop the flow of propylene.
• Replaced a copper tubing connection with a rubber welding hose. Rubber hose is not recommended for propylene. Oils in the gas can cause a rubber hose to form cracks and lose pliability.

OSHA citations before/after the incident

OSHA cited the company 12 years earlier for failing to inspect gas system equipment for signs of deterioration or leaks. The 2008 OSHA visit was prompted by another explosion of propylene gas.

Following the later 2020 incident, OSHA issued citations for failing to:

• Provide effective training on chemical hazards,
• Prevent explosive concentrations from accumulating,
• Ensure coating equipment was maintained gas-tight, and
• Ensure the manual shutoff valve at the propylene storage tank was closed at the end of each workday.

Safety issues found by CSB

CSB explains that the shop’s propylene amount was below the threshold for OSHA’s Process Safety Management (PSM) standard at 29 CFR 1910.119 or EPA’s Risk Management Plan (RMP) standard at 40 CFR 68. Still, the CSB investigation identified these safety issues:

• PSM — Had the company had an effective PSM program to identify and control hazards, it could have prevented the incident. Suggested PSM program elements included process safety information, process hazard analysis, management of change, mechanical integrity, and operating procedures.
• Emergency planning — The company’s emergency response plan did not address responding to a propylene gas leak. The company also failed to train its workers to recognize or respond to a propylene gas release. Hence, workers did not evacuate from the area after suspecting a propylene leak nor contact responders for help.

Owens concludes that the deadly incident could have been mitigated if the company had implemented an effective PSM system for the hazards of its coating operation. Even if a leak occurred, Owens believes an emergency response plan could have prevented the tragic loss of life.

OSHA chemical emergency preparedness may include an emergency action plan and/or an emergency response plan.

Lessons for industry

To prevent chemical incidents, CSB urges you to:

• Ensure the safety of workers who handle hazardous chemicals (and protect surrounding communities). This is regardless of whether or not the chemicals meet the threshold under PSM and RMP standards.
• Ensure gas detection, alarm, exhaust, and shutdown systems are adequately designed, maintained, inspected, and tested. The idea is to ensure reliability if your facility handles hazardous chemicals.
• Ensure a written emergency response plan is implemented. Also, ensure that it adequately addresses all actions to be taken in a release. Workers too need to be trained in the plan and participate in periodic drills.

CSB videos are recognized

The latest video comes after the board received a “Silver Play Button” award. The CSB’s video channel boasts 364K subscribers and nearly 100 safety videos. The channel has had over 65M combined views since 2007. What’s more, CSB claims that the chemical industry itself and engineering schools use the videos for chemical safety training.

Key to remember

A new CSB video covers the 2020 massive explosion at a Texas machine shop. The board urges you to implement PSM systems even if not required. CSB also presses you to ensure that workers are trained in emergency response plans.

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.

Case details

An investigation identified the facility’s clinker cooler and raw mill operations as primary sources of excess PM. Monitoring data revealed the facility consistently exceeded permitted emission limits, suggesting systemic deficiencies in pollution control systems. Further inspection pointed to potential inadequate maintenance and operation of existing baghouse filters, a critical technology for capturing airborne particles. The facility also appeared to struggle with fugitive dust emissions from material handling and storage areas, indicating a need for improved dust suppression measures.

Proactive management

The case clarifies the importance of rigorous, proactive environmental management within heavy industrial operations. To prevent similar violations, facilities should prioritize comprehensive monitoring and reporting. Continuous emission monitoring systems provide real-time data, enabling early detection of deviations from permitted limits. Regular inspections and preventative maintenance of pollution control equipment are essential. This includes ensuring baghouse filters operate within their design parameters and promptly replacing damaged or worn components.

Additionally, robust fugitive dust control plans are vital. They should address all potential sources of fugitive dust, encompassing material handling, storage, and transport. Implementing strategies such as water spraying, enclosure of conveyors, and optimized material stockpiling can significantly reduce emissions.

Beyond technology

Beyond technology, a strong environmental compliance culture is crucial. It involves employee training on environmental regulations, operational procedures, and the importance of adhering to pollution control measures. Regular audits and internal assessments can help identify potential weaknesses and ensure ongoing compliance.

Industrial facilities can minimize their environmental impact and avoid costly enforcement actions by focusing on:

• Proactive monitoring,
• Rigorous maintenance, and
• A strong compliance culture.

Drug & alcohol restrictions

Sections 392.4 (drugs) and 392.5 (alcohol) apply to all commercial motor vehicles (CMVs), since they use the general definition of that term from in 390.5. This definition includes both non-CDL and CDL vehicle types.

Drugs. Section 392.4 states a CMV driver can’t be on duty and possess (unless manifested), be under the influence, or use a drug or substance unless the exception in 392.4(c) is met. The rule is very broad and restricts any drug, including an over-the-counter medication, that impacts driver safety.

The exception allows for a substance, providing:

• It is administered to a driver by or under the instructions of a licensed medical practitioner;
• The licensed medical practitioner told the driver it won’t affect the ability to safely operate the CMV; and
• The drug is not a Schedule I drug, a classification given by the Drug Enforcement Administration.

Marijuana is currently a Schedule I drug, so state laws legalizing marijuana and CBD products containing marijuana don’t change the federal requirement.

Alcohol. Section 392.5 restricts alcohol use or being under the influence of alcohol while on duty or within four hours of coming on duty or operating a CMV. The regulation takes it a step further by stating the driver can’t have any measured alcohol concentration or detected presence. Like drug restrictions, drivers can’t possess (even unopened) alcohol in the CMV, unless manifested or possessed by bus passengers.

Both rules place a burden on the motor carrier by stating they can’t “require or permit” the driver to violate these requirements

Non-CDL drivers handled differently than CDL

It’s easy when it’s a CDL CMV. The carrier’s DOT testing program under Part 382 overlaps and offers instructions.

It gets tricky when the event occurs while operating a non-CDL CMV. There is no testing mechanism under DOT authority.

For alcohol, the rules require the driver to be placed out of service for 24 hours.

It becomes a licensing issue if the drug or alcohol violation is learned through an enforcement stop. A traffic conviction for driving a CMV while under the influence will result in a loss of CMV driving privileges (391.15).

However, if the violation is learned of through the motor carrier, much is left to their discretion. Consider these possible options:

• If the driver is using a drug that impacts safety or has an alcohol problem, the employer can use 391.45(g) to send the driver for a new medical exam. Drug use and a current clinical diagnosis of alcoholism both prevent medical certification. It puts the decision in the hands of the medical examiner and not the employer.
• The employer can send the driver for a non-DOT drug and/or alcohol test. However, it’s important to note that any failed or refused tests hold no DOT consequences. Company policy dictates the next move (e.g., discipline, termination, treatment). A non-DOT program must follow state and federal employment laws, which may address the consequences of a positive test marijuana. Some states restrict testing for marijuana.

When can a driver return to work?

Motor carriers are told they can’t permit a driver to violate these requirements. It is up to the carrier to decide if the driver no longer poses a safety risk. Have they stopped using drugs or alcohol?

One option to address this is to have a second-chance policy, requiring anyone failing a non-DOT test to undergo treatment. This policy should be reviewed by the HR department.

Key to remember: When a non-CDL CMV driver uses drugs or alcohol, there are no instructions to the employer on how to respond to the violation. Motor carriers are faced with creating policies and procedures that are a blend of regulation and best practice — and should always reviewed by an HR expert.

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!

Poll question

A March 2025 report from J. J. Keller and Associates, Inc., tapped 74 professionals. Respondents did not need to be in the “warehousing and storage industry” (or NAICS 493) to participate.

The poll asked, “Which of the following is your biggest warehouse safety/health challenge?” To frame the question, the poll offered options:

• Ergonomics hazards
• Slips, trips, and falls (STFs)
• Exit routes
• Fire protection
• Materials storage hazards
• Powered industrial trucks (PITs)
• Motor vehicle hazards (not PITs)
• Electrical hazards
• Other
• We don’t have a warehouse

Poll results

Seventeen respondents said that their organizations don’t have a warehouse. That left 57 with a warehouse challenge. The results shook out as follows:

Remarkably, no one selected “Fire protection,” even though the Portable Fire Extinguishers standard ranked sixth in OSHA violations for the warehousing industry last fiscal year (FY).

For “other,” the respondents mentioned personal protective equipment and safety data sheets. Some raised topics associated with ergonomics and PITs. That reveals that these two issues may be greater challenges than indicated.

Boiling it down, two safety/health topics dog over half of the warehouses in the poll — STFs and PITs.

Other data sources

To get perspective, consider Bureau of Labor Statistics (BLS) and OSHA data for NAICS 493. For example, according to BLS, for 2021 to 2022, the top “exposures” that led to days away from work were:

1. Overexertion
2. Contact with an object, including struck by
3. Hazardous substances
4. STFs
5. Transportation incidents

BLS fatality statistics for 2023 show these leading exposures:

1. Transportation incidents
2. Violent acts
3. Falls to a lower level
4. Harmful substances
5. Contact incidents

Similarly, BLS explains that five “sources” of injury/illness with days away for 2021 to 2022 dominate the pack:

1. Containers
2. Vehicles
3. Persons
4. Floors, walkways, and ground surfaces
5. Parts and materials

The most-violated OSHA standards for NAICS 493 in FY 2024 were 29 CFR:

1. 1910.178, PITs
2. 1910.37, Exit routes
3. 1910.303, Electrical – General
4. 1910.1200, Hazard communication
5. 1910.305, Electrical wiring

Also, last year, OSHA revealed the top citations under its warehousing National Emphasis Program:

1. PITs
2. Exit routes
3. Electrical hazards

Results are a little surprising

Given uppermost BLS and OSHA warehouse-related data that points at PITs, ergonomics, and motor vehicles, you might not have anticipated STFs to overwhelmingly command the lead. Possible explanations might be that:

• OSHA has a regulation for walking-working surfaces (WWS) but none for ergonomics.
• OSHA has a fall prevention campaign and National Emphasis Program.
• STF events/hazards are more visible than ergonomics injuries/hazards.
• Many STF events may not reach BLS because they’re less than recordable and don’t involve days away.
• BLS data reflects the injury/illness data received from employers. If that data is underreported, it’s flawed.
• OSHA inspectors “might” focus more attention on warehouse PIT, exit route, and electrical violations because those violations rank high every year.

Whatever the explanation, there’s a disconnect between what our respondents’ challenge areas are and what BLS and OSHA see for major causes of injuries/illnesses and violations, respectively. Yet, there’s value in combating the biggest challenges that turned up in our poll.

STFs

OSHA mandates that WWS be inspected regularly. Once you determine an inspection frequency that will keep surfaces safe, stick to it. The agency also calls for WWS inspections when conditions warrant an additional check.

To prevent falling off the dock edge, the dock doors must be closed when not in use, or a guardrail system must be in place. “Dock jumping” is prohibited. If workers need to go down at the dock area, make sure they use the stairs provided.

PITs

Chief compliance issues involving PITs are training and maintenance. Before operating a PIT, your workers must successfully complete training and be evaluated on their operating skills. OSHA also requires PITs to be examined at least daily before being placed into service. In addition, you need to have authorized personnel perform routine checks and preventive maintenance to keep PITs in safe operating condition.

Key to remember

Two safety and health topics, STFs and PITs, bubbled up as the toughest in a recent poll of warehouse operations. The top challenge was unpredicted.

Validity of inspections

FMCSA regulations mandate that every CMV undergo a periodic inspection at least once every 12 months. For expiration purposes, the 12-month period begins on the last day of the month after the inspection was completed. We’re often asked where this can be found in the regulations. It’s actually not in the regulations, but appears in the preamble to the final rule found in the Federal Register dated December 7, 1988.

Several states have vehicle inspection programs that meet the federal inspection standards outlined in Appendix A to Part 396. These state inspections can be used in lieu of the federal inspection, ensuring that CMVs comply with safety regulations. However, if a state inspection is used, check with your state regarding expiration. This expiration may be 90 days or 365 days from the date of the inspection, rather than the last day of the month, as with the federal requirement.

Inspections of vehicles registered in Canadian provinces or Mexico will be accepted as equivalent to the federal inspection for the U.S. These inspections must meet Canadian or Mexican standards to qualify.

Required documentation

A carrier must retain a report as proof of this inspection for any vehicle in their control. The report must include:

• The individual performing the inspection,
• The motor carrier operating the equipment,
• The date of the inspection,
• The components inspected and results of the inspection, and
• Certification of the accuracy and completeness of the inspection.

Additionally, the vehicle must carry proof of the most recent inspection, such as a sticker, report, or decal. If the report is used it should be a copy to prevent loss of the original. Decals and stickers on the outside of the vehicle provide simple visual verification of compliance.

Inspector qualifications

Carriers are permitted to perform these inspections on company vehicles. The person doing the inspection must be qualified as outlined in 396.19. The qualifications include:

• Personal knowledge and understanding,
• Training, and
• Experience.

It‘s the responsibility of the motor carrier to retain evidence of the qualifications. The evidence must be kept for the time the inspector is completing the periodic inspections. If the inspector stops doing inspections or leaves the carrier, the evidence must be retained for one additional year.

Retention periods

Motor carriers are required to maintain detailed records of periodic inspections. This report must be retained for 14 months from the date of the inspection. It must be kept where the vehicle is housed or maintained. The report must be available for inspection on request by authorized officials.

If an outside vendor is performing the inspections, the records can be stored with them. In the event of an audit, it would be the carrier's responsibility to obtain the inspection form from the shop. Since the vendor is not being audited, they may not respond as quickly as needed to provide the information. The best practice would be to obtain a copy of the inspection for internal records upon completion of the inspection. This small step could go a long way toward staying compliant.

Key to remember: Keeping your records up to date and compliant will keep you prepared and reduce the risk of missing items during an audit.

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.

‘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.

Retaining the Form I-9

The Form I-9 is used verify an employee’s identity and eligibility to work in the United States. It is completed when an employee is hired, and employers must have a Form I-9 on file for all employees.

In addition, after an employee leaves the company, employers must keep the form for three years after the date of hire, or one year after the date employment ends, whichever is later.

An employer receiving a Notice of Inspection from ICE has at least three business days to produce the requested forms.

Preparing for an internal audit

Ensuring that things are in order can help a company be prepared for a Form I-9 inspection. To make an internal audit more productive, make sure:

• A Form I-9 is on file for all current employees.
• The form is properly retained for former employees.
• The forms are stored securely.
• The forms are stored in a way that makes it easy to retrieve them within three days.
• The forms are kept separate from employees’ personnel files.

Errors to watch for on the Form I-9

Section 1 of the Form I-9 is completed by the employee and Section 2 is completed by the employer. Both sections are on a single page, but it’s easy for errors to crop up.

When looking over Section 1, make sure that:

• The employee has entered their name, address, and date of birth.
• Any previous names (including a maiden name) are listed in the Other Last Names Used box.
• A taxpayer identification number has not been entered as a Social Security number.
• The employee has checked one box to attest to citizenship or immigration status.
• The employee has signed and dated the form.

When reviewing section 2, make sure that:

• List A documentation or List B and C documentation has been entered.
• The document title, issuing authority, number, or expiration date for documentation presented have been entered.
• The date of the employee’s first date of employment for wages has been entered in mm/dd/yyyy format. It should match the date in the payroll records.
• The person who examined the employee’s documents has entered their name and title and has signed and dated the form.
• The business’s name and address have been filled in.

If you find an error

An employer should not try to hide an error by trying to black out the incorrect information or cover it with correction fluid. Instead, the ICE advises employers to:

• Draw a line through the incorrect information.
• Enter the correct information.
• Initial and date the correction.

Errors that have been made in Section 1 should be corrected by the employee. The employer can correct errors found in Section 2.

If there are multiple errors on the form, the section may be redone on a new Form I-9. The new form is attached to the old one. A note explaining the reason for the changes should be included in the file with the form I-9.

Key to remember: Employers need to be diligent about completing and maintaining the Form I-9, as well as ensuring they are only hiring individuals eligible to work in the United States, as fines for noncompliance have increased.

Can DEI training be discriminatory?

Harassment is illegal when it is so frequent or severe that a reasonable person would find it to be intimidating, hostile, or abusive. Depending on the facts of the situation, the EEOC notes that an employee may be able to plausibly allege or prove that a diversity or other training relating to DEI created a hostile work environment (which is a form of harassment) by showing that the training was discriminatory in its design or execution. Individuals might be able to prove that diversity or DEI-related training created a hostile work environment by showing that the training was discriminatory in:

• Content,
• Application, or
• Context.

An employee’s opposition to DEI training may be a protected activity if the employee provides a fact-specific basis for the belief that the training violates the law. The EEOC information notes that in cases alleging a hostile work environment, courts have ruled in favor of plaintiffs who present evidence that the training was discriminatory. For example, repeated training that subjects male employees to unwelcome touching to show how that makes female employees feel could create a hostile work environment.

A single training session that merely makes an employee uncomfortable or uneasy would not create a hostile work environment, however.

Most DEI training is designed to help employees understand differences and encourage respect in the workplace and would not cross the line into discrimination when conducted appropriately.

Key to remember: Employers may still have inclusion practices, but they should be open to all employees, regardless of protected characteristics.

Why did banks have extra posting requirements?

The extra postings were required because the Office of Federal Contract Compliance Programs (OFCCP) considered banks and other financial institutions to be a government contractor when it obtained federal deposit insurance, acted as an issuing and paying agent for U.S. savings bonds and notes, or was a federal fund depository.

As a federal contractor, a bank was required to display the Know Your Rights and Pay Transparency postings required under EO 11246.

What happens now that EO 11246 has been revoked?

Because EO 11246 has been revoked under the executive order signed in January, banks no longer need to display the postings the law required. However, they still must display the postings required under other federal laws. The Pay Transparency posting is no longer required, but the Equal Employment Opportunity Commission (EEOC) requires employers with 15 or more workers to display the Know Your Rights posting. As a result, banks with 15 or more employees still need to have the Know Your Rights posting on the wall.

In addition, a separate executive order requires banks to display the “Employee Rights Under the National Labor Relations Act” posting.

Banks also need to display required state, local, and federal postings including:

• Employee Rights Under the Fair Labor Standards Act
• Employee Rights: Employee Polygraph Protection Act
• Job Safety and Health: It’s the Law
• Your Rights Under USERRA (Uniformed Services Employment and Reemployment Rights Act)
• Know Your Rights: Workplace Discrimination is Illegal (if they have 15 or more employees)

Key to remember: Banks no longer need to display the Pay Transparency posting required under EO 11246, but must display the Know Your Rights Posting if they have 15 or more employees. They must also display other required federal, state, and local postings.

1. Develop, implement, and enforce an energy control program

A well-documented energy control program is the foundation of lockout/tagout safety. Construction companies should create clear policies and procedures for controlling hazardous energy and ensure strict enforcement. VisitJ. J. Keller Safety Management Suite to access over 125 safety policies pre-written templates, including Lockout/Tagout and Hazardous Energy Control.

2. Use lockout devices for equipment that can be locked out

When machinery can be locked out, a physical lockout device must be used to prevent accidental activation. If the equipment cannot be locked out, additional safety measures must be in place to ensure worker protection.

3. Establish a tagout program for equipment that cannot be locked out

If machinery lacks a lockout option, an effective tagout system should be implemented. Tagout devices must provide the same level of safety as lockout devices, warning employees not to operate the equipment.

4. Document and enforce energy control procedures

Energy control procedures should be written, detailed, and regularly reviewed to ensure they remain effective. These procedures must outline the steps required for shutting down, isolating, and securing hazardous energy sources.

5. Use standardized and durable lockout/tagout devices

All lockout/tagout devices must be standardized in appearance, durable, and substantial enough to prevent accidental removal. Only authorized devices should be used to ensure consistency and reliability.

6. Clearly identify lockout/tagout devices by individual users

Each lockout/tagout device must be labeled to identify the employee who applied it. This helps prevent accidental removal and ensures accountability in the lockout/tagout process.

7. Restrict lock removal to the employee who applied it

To maintain safety, only the individual who applied a lockout/tagout device should remove it. If removal by another person is necessary, strict procedures should be followed to ensure the safety of all employees. See our FAQ for more information: Can a lock be cut off if the person who applied it isn’t there to remove it?

8. Conduct annual inspections of energy control procedures

Regular inspections of lockout/tagout practices help identify potential issues and ensure compliance with OSHA standards. Annual audits should confirm that all energy control procedures are followed correctly.

9. Provide mandatory training for all employees

Proper training is crucial for effective lockout/tagout implementation. Employers must ensure that all workers understand their roles, responsibilities, and the risks associated with hazardous energy. Retraining should occur periodically, when new procedures are developed and whenever new hazards arise.

10. Comply with OSHA standards for special situations

Additional lockout/tagout provisions apply in specific scenarios, such as:

• Testing or repositioning machines
• Working with outside contractors
• Group lockout situations
• Shift changes or personnel transitions
• Ensuring compliance with OSHA standards in these situations is essential for maintaining worker safety.

Key to remember: By following these 10 steps, you can create a safer work environment and maintain compliance with OSHA regulations.

The poll results are in

To kick things off, participants were asked, "How would you rate your organization's emergency preparedness?" Most participants rated their organization as good to fair. However, some even rated their organization as poor when it comes to being prepared for the unexpected.

Additionally, the participants were asked about their organization's readiness to continue business operations “after” an emergency. While many participants rated their organization's readiness as good to fair, there is a clear indication that improvements are needed. Nearly 20% of respondents felt their organizations were not sufficiently prepared to handle the challenging outcomes presented by an unexpected emergency. However, on the bright note, nine percent shared that their organizations were excellently prepared for the aftereffects of an emergency.

Emergency preparedness breakout sessions

During the interactive portion of our event, participants were divided into three groups, each focusing on a different stage of emergency preparedness: before, during, and after. Each team dove into discussions about their organizations’ level of preparedness and tackled the following questions:

• Challenges: What hurdles have you faced or are currently grappling with?
• Solutions: What innovative solutions can you brainstorm to overcome these challenges?
• Best Practices: What are the standout strategies your organization uses for emergency preparedness?

The groups provided excellent solutions and best practices for various challenges, focusing on organizational communication and culture, training, and coordinating with external resources for preparation and emergency response activities.

Communication and culture

Communication and culture were key topics in many discussions, both for preparing for emergencies and handling them afterward. One participant emphasized the importance of hazard analysis to understand the risks workers face and prioritizing emergencies.

Likewise, they emphasized work practices like performing job safety assessments, completing workplace safety audits, and developing safety committees help build a stronger safety culture, enhancing worker safety and response during emergencies.

Training

Training was a consistent theme throughout the conference. This included general information, specific equipment training such as fire extinguishers and alarm systems and developing muscle memory through regular fire drills and other practice methods to ensure appropriate responses in emergencies.

One highlight was a best practice shared by a participant: using escape rooms for scenario-based emergency training. They found this method more engaging than traditional training sessions, although they did note that some trainees felt hesitant due to a lack of confidence in successfully navigating the escape room

Overall, the participants indicated that the advantages of this type of training, from the perspective of being prepared to act appropriately in an emergency, outweigh the challenges.

Coordinating with external resources

Seeking help and assistance from other experts and local stakeholders can quickly improve the emergency preparedness of an organization.

One participant suggested building a strong relationship with local response organizations, like fire departments, since they're equally invested in your emergency preparedness. The better they know your organization, the faster and more effectively they can respond to emergencies. Also, these coordination efforts also impact keeping the responders safe.

The group also discussed what information these response organizations would need. Depending on your organization, they might be interested in the locations of hazardous materials, muster points, fire alarms, and sprinkler systems. It was noted that some response organizations have software to quickly access this information during emergencies.

Additionally, identifying and working with other local organizations was mentioned as a benefit in providing mutual aid, support, and assistance as a community working together to ensure the safety and well-being of its families and businesses.

Key to remember: Emergency preparedness at work is vital to protect employees and property. Event participants emphasized planning ahead, effective training, clear communication, and collaborating with community resources to minimize the impact of emergencies on the organization

What this means for safety managers

New leadership at OSHA and the Department of Labor often brings shifts in enforcement priorities, regulatory interpretations, and guidance. It’s best for the safety manager to stay informed on who’s making the calls—because their influence can shape everything from inspection trends to policy rollouts.

OSHA’s new top officials

Amanda Wood Laihow has been appointed Deputy Assistant Secretary of OSHA.

Safety pros may recognize her name—she served as a commissioner on the Occupational Safety and Health Review Commission during the first Trump Administration. Her background includes labor policy work with the National Association of Manufacturers and legal roles within several government agencies. Laihow’s experience suggests a business-friendly, compliance-through-collaboration approach may be on the horizon.

Michael Asplen joins as OSHA’s Senior Policy Advisor.

He brings a policy-heavy background, having worked closely with Laihow and at the National Association of Manufacturers and the Consumer Product Safety Commission. His influence may shape how OSHA interprets safety regulations and industry feedback, especially as businesses navigate compliance under shifting priorities.

Other key labor appointments

Beyond OSHA, several other appointments are worth watching.

Jonathan Snare returns as Deputy Solicitor of Labor.

With prior experience as Acting Assistant Secretary for OSHA, Snare’s return could signal continuity in legal interpretations and enforcement strategies under OSHA’s umbrella. Elisabeth Messenger will lead the Office of Labor-Management Standards. This is a role that often intersects with workplace policies and union-related matters.

Brian Walsh joins the Office of Disability Employment Policy.

Under this position, the initiatives tied to accessible workplaces and inclusive safety programs could get a fresh look.

Why this matters

Changes in leadership often influence how OSHA conducts inspections, issues citations, and prioritizes industries or hazards. For example, a more employer-centric team might emphasize compliance assistance, voluntary protection programs (VPP), and reduced regulatory burdens.

Expect updates to enforcement bulletins, possible delays (or accelerations) in proposed rules, and potentially new compliance tools aimed at helping businesses meet safety standards without heavy-handed penalties.

What you can do

• Stay informed: Keep checking Compliance Network for more news, new policies, and regulatory updates. You can also bookmark OSHA’s newsroom on www.osha.gov.
• Review your safety program: Align your training, hazard assessments, and documentation with current standards.
• Connect with peers: Reach out to our team through the Expert Help feature if you have questions about pending regulations or other safety and compliance concerns.

J. J. Keller always keeps a close eye on how these appointments shape OSHA’s strategy—and what that means for the frontlines of workplace safety. Stay tuned for updates and actionable tips for staying compliant, efficient, and ahead of the curve.

Key to remember: U.S. Department of Labor announced new senior Trump Administration appointees, which could influence the OSHA regulations and enforcement policies.

Background

In 1996, OSHA issued a final rule — Safety Standards for Scaffolds Used in the Construction Industry. It revised Subpart L of 29 CFR 1926.

Fast forward to December 6, 2013, OSHA sent an LOI to an engineer. Subsequently, OSHA posted it on the agency’s website. The letter focused on questions about how the weight of a scaffold is considered when determining whether the 4-to-1 factor is met under 1926.451(a)(1).

Then, in 2020, after the original letter “raised some confusion in the scaffold industry,” OSHA entered revisions to the 2013 letter posted online.

What prompted the court case?

The court opinion explains that the plaintiff claimed:

• It contracted a construction company for a project.
• The contractor and the plaintiff had a dispute over the design of a scaffold for the project.
• The contractor turned to the revised LOI and felt that the plaintiff’s design was not really required by the regulations.
• The dispute prompted engineering costs and project delays for the plaintiff.

Subsequently, the plaintiff sued OSHA in 2024. The case hinged on whether OSHA violated the Administrative Procedures Act (APA) by issuing the 2020 LOI revisions without notice and comment. The plaintiff also asked the court to find the letter to be arbitrary and capricious (another violation of the APA).

What did the judge say?

The APA requires notice and comment for rulemakings. However, the judge wrote that, per 5 U.S.C. 553, these procedures don’t apply “to interpretative rules” in this case. The judge then referred to another court decision that explained that having no notice and comment makes issuing interpretive rules fast and easy. The tradeoff is that interpretive rules cannot be treated as laws or hold such weight. In fact, the judge calls the revised letter “informational.” In other words, LOIs are not requirements and cannot make employers do something, said the judge.

The opinion went on to project that even if the interpretation shifted from the 2013 to 2020 letters, the plaintiff did not show that OSHA changed its enforcement in any regard or that employers were likely to have changed their compliance approach in response to the revised letter. Plus, the plaintiff could have responded to the contractor dispute in ways other than those involving costs and project delays, contended the judge.

Finally, with regard to the claim of an arbitrary and capricious interpretation, the judge explains that while final rules are “reviewable,” LOIs are not.

OSHA’s website provides context

Today, OSHA’s Standard Interpretations webpage provides a notice: “OSHA requirements are set by statute, standards, and regulations. [OSHA] interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Each letter constitutes OSHA's interpretation of the requirements discussed. Note that [OSHA] enforcement guidance may be affected by changes to OSHA rules. Also, from time to time [the agency updates its] guidance in response to new information.”

Interestingly, that wording has changed over time. Back when the revised letter was issued in 2020, the webpage’s notice read: “Standard Interpretations are letters or memos written in response to public inquiries or field office inquiries regarding how some aspect of or terminology in an OSHA standard or regulation is to be interpreted and enforced by the Agency. These letters provide guidance to clarify the application of an established OSHA standard, policy, or procedure, but they may not, in themselves, establish or revise OSHA policy or procedure or interpret the OSH Act. They must specifically cite the source policy or procedure document they interpret.”

While both the old and new wording are similar, the new wording makes clear that LOIs do not set employer obligations. Rather, only the statute, standards, and regulations set requirements.

Key to remember

A court sided with OSHA over whether a revised LOI violated the APA. An opinion confirms that the OSHA interpretive letter is not a rulemaking, so it did not violate APA requirements.

Contemporaneous defined

OSHA does not define “contemporaneous” in the regulations, but offered clarification in a letter of interpretation (LOI) dated May 15, 2007. The evaluations must be conducted when the signs or symptoms are in the same stage of development, same degree of severity, and the condition is evaluated in similar context.

Opinions obtained on the same day would be contemporaneous. Acceptable time delays may differ depending on circumstances, including the type and severity of the condition. For instance, if the employee’s condition either improved or worsened between examinations, the condition would not be evaluated at the same stage.

An employer presented a scenario in an LOI dated September 24, 2010. An employee fell from a chair, went to the emergency room, and was given restrictions that did not affect his duties. Ten days later, the employee visited an occupational clinic and was released to full duty. Finally, after another four days (14 days after the initial ER visit), the employee visited a chiropractor who recommended days away. The employer wanted to consider the initial opinions as more “authoritative” to avoid recording days away. However, OSHA noted that the opinions were not contemporaneous so the question of authority was moot. The employer had to record the case. The employee’s injury might have worsened due to activities outside work, but since the condition started at work, OSHA considers it work-related.

In another LOI dated February 25, 2011, OSHA offered additional considerations regarding “contemporaneous” opinions to include:

• Whether the examination was in person (reviewing documents is not sufficient);
• Whether the examinations were done on the same day;
• Whether the employee was subjected to additional events or exposures between the examinations; and
• Whether medical treatment, restricted work activity, or days away occurred between the examinations.

Authoritative defined

The regulation at 1904.6(b)(3) defines “authoritative” as the “best documented, best reasoned, or most authoritative.” The 2010 LOI mentioned previously clarifies that the most authoritative opinion is “the best documented, the best reasoned, or the most persuasive.”

OSHA allows employers to make that determination. In fact, the preamble published in 2001 says, “the rule requires the employer to rely on the one judged by the employer to be most authoritative.” Also, a frequently asked question in OSHA’s Recordkeeping Policies and Procedures Manual (CPL 02-00-135) states, “the employer may determine which recommendation is the most authoritative and record on that basis.”

So, if an injured employee gets a recommendation for medical treatment, restrictions, or days away, but the employer obtains a contemporaneous opinion contradicting that recommendation and the second opinion is more authoritative, the employer may follow the second opinion. However, once medical treatment is provided, the employer must record the case. A subsequent recommendation cannot “undo” a recommendation that was already followed or implemented.

Key to remember: Employers can record cases based on second opinions if the evaluation was both contemporaneous and more authoritative.

Propping open fire doors is a common violation

Each year, the National Fire Protection Agency (NFPA) reminds employers not to prop open fire doors for convenience. Propping open doors has become a common violation of fire codes after the pandemic because workers didn’t want to become exposed to germs on common touchpoints.

I know firsthand this is an issue at construction jobsites and remember telling workers not to prop open fire doors in our clients’ facilities. Workers were doing this out of convenience because they carried things into and out of the existing facility. Propping open a fire door, or wedging it open, are serious fire and safety hazards. Keep fire doors closed to prevent smoke and fire from spreading into the fire evacuation route, like a stairwell. OSHA and NFPA don’t prohibit propping open a fire exit door but caution employers against doing this for safety and security reasons.

Fire doors must remain closed, although some may be designed to automatically close when fire and smoke are sensed by jobsite fire detection equipment. To reduce the need to disinfect frequently touched points, workers can push open fire doors using their sleeves by pushing against the push bar instead of using their hands. You can also increase housekeeping efforts and the frequency that doorknobs, handles, and push bars are cleaned throughout the shift.