Shipping papers to face automatic rejection before reaching border

Single-use plastics: New bans and restrictions

Several states have enacted new bans on polystyrene foam containers, plastic straws, and produce bags:

• California SB 1046, as of January 1, 2025, bans expanded polystyrene (EPS) food containers unless they meet a 25 percent recycling rate. Precheckout bags must be compostable or made of recycled paper.
• Delaware SB 51 bans foam containers and plastic stirrers unless requested by the customer.
• Oregon SB 543 bans EPS containers and food packaging with intentionally added PFAS.
• Virginia bans food vendors from using EPS containers starting July 1, 2025.

Compliance tip: Audit your packaging inventory and supplier certifications. Ensure alternatives meet compostability or recyclability standards.

Extended Producer Responsibility (EPR): Expanding nationwide

EPR laws now apply in several states. These laws require companies to help pay for recycling and report packaging data:

• Maryland SB 901 allows multiple Producer Responsibility Organizations (PROs) and mandates cost-sharing for recycling.
• Washington SB 5284 targets consumer packaging with compliance deadlines starting in 2028.
• Colorado bans unregistered producers from selling covered products as of July 1, 2025.
• California SB 54 revised draft rules released in May 2025 to include new compliance dates and exemptions.

Compliance tip: Register with your state’s PRO, submit packaging data, and prepare for fee schedules. Track deadlines and exemptions closely.

Chemical recycling: Regulatory reclassification and impacts

States like Texas and Pennsylvania now classify chemical recycling as manufacturing, not waste management. This shift encourages investment but also changes permitting and emissions reporting obligations.

Compliance tip: If your facility uses or contracts chemical recycling, review air and water permits. Ensure alignment with manufacturing regulations.

Per and polyfluoroalkyl substances (PFAS): Phaseouts and hazardous waste updates

More states are banning PFAS in packaging and cookware:

• Minnesota, Oregon, Rhode Island, and New Mexico have banned or phased out PFAS in consumer products.
• Illinois SB 727 aligns PFAS limits with the Environmental Protection Agency standards.

Compliance tip: Update product Safety Data Sheets and conduct PFAS audits. Prepare for new reporting under TSCA Section 8(a)(7), including data on manufacture, use, and disposal.

Circular economy and composting: Recent mandates

States are setting zero-waste goals and requiring composting:

• Hawaii HB 750 launches a statewide recycling needs assessment.
• Maine LD 1065 requires large food waste generators to compost by 2030.

Compliance tip: Evaluate organics diversion programs and infrastructure. Consider partnerships with composting facilities.

EHS teams: What to do now

• Map your regulatory exposure: Identify which state laws apply to your operations.
• Engage with PROs: Register, report, and participate in rulemaking.
• Train staff: Ensure procurement, operations, and legal teams understand new requirements.
• Audit packaging and waste streams: Replace banned materials and optimize recycling.
• Monitor emerging legislation: Stay ahead of new bills and compliance deadlines.

Key to remember: Staying compliant in 2025 means more than avoiding fines. EHS teams must lead efforts to meet new waste laws and support sustainability goals.

The catastrophic incident

Picture an 80,000-barrel aboveground storage tank. On March 17, 2019, the circulation pump on the tank failed, allowing the release of a flammable butane-enriched naphtha blend. The release was undetected, as vapor accumulated in the area for 30 minutes. The vapor then ignited, resulting in a large-scale fire that spread to 14 other tanks. Fire crews were unable to extinguish it for three days. Black smoke cascaded into the community that was sheltering in place.

Then the petrochemicals, firefighting foams, and contaminated water broke past the secondary containment wall. An estimated 500,000 barrels of the materials then entered an adjacent bayou and reached a shipping channel contaminating a seven-mile stretch.

What did investigators find?

The CSB investigation found technical failures. The video identifies three important but missing things:

• Procedures to maintain the mechanical integrity of the pump,
• Flammable gas detection systems, and
• Remotely operated tank valves.

Outdated tank farm design was also a factor. Tanks were spaced close together and did not have subdivided containment systems.

Despite the process issues, regulatory shortfalls played a prominent role in the board’s findings. CSB Chairperson Steve Owens remarks, “A serious gap in federal regulations also contributed to the severity of this event.”

OSHA regulatory gap

The CSB video, "Terminal Faiure," points out that 29 CFR 1910.119, the OSHA Process Safety Management (PSM) standard, does not cover all flammable liquids. Those stored in atmospheric tanks and kept below their normal boiling point without chilling or refrigeration are not subject to the standard. This is referred to in industry as the “flammable liquid atmospheric storage tank exemption.” See 1910.119(a)(1)(ii)(B).

The terminal facility company took the position that the storage of the butane-enriched naphtha product in the tank was excluded from PSM coverage. It based this stance on the exemption. According to CSB, had the OSHA PSM standard applied to the tank and its equipment, the terminal facility would have been required to implement a formal PSM system.

That system would have given the company a better chance to identify and control hazards for the tank and its equipment. Had the terminal facility put a comprehensive PSM system in place that effectively identified and controlled the tank/equipment hazards, the company could have prevented this incident, argues CSB.

EPA regulatory gap

Unlike the PSM standard, the Risk Management Program (RMP) standard at 40 CFR 68 does not include an exemption for atmospheric storage of flammable liquids. However, CSB highlights that 68.115(b)(2)(i) has a significant loophole. It reads, “[I]f the concentration of the substance is one percent or greater by weight of the mixture, then, for purposes of determining whether a threshold quantity is present at the stationary source, the entire weight of the mixture shall be treated as the regulated substance unless the owner or operator can demonstrate that the mixture itself does not have a National Fire Protection Association [NFPA] flammability hazard rating of 4.”

The terminal facility determined that the butane-enriched naphtha product contained in the tank was not subject to RMP because it was an NFPA-3a rated material. While the CSB is not validating the terminal’s NFPA “3” finding, the board speculates that had the EPA RMP standard applied to the tank and its pump, this incident likely would not have occurred.

CSB recommends closing the regulatory loopholes

In the recently released video, CSB recommends that:

• OSHA eliminate the atmospheric storage tank exemption from the PSM standard — The board insists that the atmospheric storage tank exemption in the OSHA standard continues to allow for catastrophic incidents to occur. Without PSM coverage, necessary safeguards are not being implemented for equipment that should otherwise be covered, CSB says.
• EPA modify 68.115(b)(2)(i) to expand coverage of its RMP standard to include all flammable liquids, including mixtures, with a flammability rating of NFPA-3 or higher — NFPA-3 flammability rated materials have resulted in significant explosions and fires similar to those contemplated to occur from NFPA-4 rated materials, observes CSB.

Owens emphasizes, “We believe that our recommendations, particularly to OSHA and EPA, to expand regulatory oversight of these kinds of chemicals and facilities will help ensure that a similar incident does not occur in the future.”

Key to remember

A new CSB video recounts the events involved in a massive storage tank fire. At the same time, the video warns of blind spots in OSHA PSM and EPA RMP regulations that may lead to other incidents in the U.S.

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.

e-Manifest compliance check

Use this checklist to help you ensure that your business is set to comply with the rest of the Third Rule’s requirements that take effect in December.

Use e-Manifest resources for additional help

EPA has multiple resources to help regulated hazardous waste handlers comply with e-Manifest regulations, including the upcoming Third Rule’s requirements that take effect on December 1, 2025. Consider using the resources the agency provides on “The Hazardous Waste Electronic Manifest (e-Manifest) System” website, such as:

• Webinars,
• Demonstration videos,
• General and user-specific FAQs about the e-Manifest program, and
• The e-Manifest Helpdesk for industry users.

The compliance checklist and e-Manifest resources can help you ensure that your facility will be ready to comply with the rest of the Third Rule’s requirements by December.

Key to remember: The remaining e-Manifest Third Rule requirements take effect on December 1, 2025. Facilities should confirm that they’re prepared to comply.

How equipment failure turns into a hazard:

Neglected maintenance can create serious risks, including:

• Mechanical failures – unmaintained machinery can suddenly seize, break apart, or eject parts.
• Electrical hazards – frayed cords, worn insulation, or faulty breakers can cause shocks or fires.
• Chemical releases – worn seals, cracked tanks, or failed valves can ultimately lead to hazardous spills.
• Ergonomic strain – poorly calibrated or damaged equipment can force employees into awkward or unsafe positions.

These risks aren’t just hypothetical; OSHA frequently cites employers after incidents where the root cause was poor or non-existent preventative maintenance.

Key elements of a safety driven PM program:

1. Risk based scheduling – prioritize maintenance on equipment with the greatest safety risks (ex. forklifts, overhead cranes, pressure vessels, and electrical systems). Maintain a critical equipment registry that highlights assets where failure could lead to injury or regulatory violations.
2. Standardized procedures – document step-by-step PM tasks with a strong emphasis on safety. For example, include lockout/tagout steps, PPE requirements, and confined space entry procedures. Train employees to follow SOPs consistently to reduce human error.
3. Qualified personnel – preventative maintenance is only as good as the people performing it. Ensure technicians are trained not only on the task, but on the safety hazards of the equipment.
4. Integrated safety checks – incorporate safety specific items in PM inspections such as checking emergency stops, guarding, grounding, or ventilation performance.
5. Document everything – use digital tracking to log inspections, repairs, and part replacement. This protects employers during audits and helps spot recurring issues.
6. Operator involvement and pre-use checks – empower front-line employees to perform daily pre-use inspections such as forklift inspections and machine guarding verification. Create simple reporting tools to flag issues before they escalate.
7. Corrective action and follow-up – establish a system for tracking identified hazards until resolution through work orders or corrective action logs. Communicate completion of corrective actions to affected employees.

A well-run preventative maintenance program is, at its heart, a safety program. While cost savings and productivity gains are valuable, the greatest benefit is protecting workers from harm’s way. By preventing equipment failures, ensuring safety systems function correctly, and reinforcing a culture of care, PM programs create a safer workplace where employees can perform their jobs with confidence. Simply put, machines can be replaced – people cannot. That’s why preventative maintenance isn’t just smart business, it’s a commitment to worker safety.

Keys to remember: A safety driven PM program isn’t just about keeping machines running. It’s about making sure every inspection, service, and repair is performed with worker safety in mind.

4 scenarios and best practices

The four disqualification scenarios below are quite common, but the recommended best practices can help avoid them.

1. Expired medical certifications

Drivers holding a Commercial Driver’s License (CDL)Drivers must carry a valid medical certificate or have the certification on their motor vehicle record (MVR). If the certification expires, the driver cannot operate any CMV.

Examples of when medical certifications may expire include:

• The medical exam wasn't scheduled early enough to allow for examiner-required tests or input from a specialist, which may impact a certification decision. An examiner cannot extend an expiration date for any reason.
• CDL driver exam information may not transfer to their state licensing authority in a timely manner and the MVR will show “Not-certified” if the problems aren't resolved before the expiration date.

Best practices:

1.Track in a fleet management system, all driver medical certification expiration dates and verify that each medical exam is scheduled with sufficient time prior to expiration.

2.Use continuous MVR monitoring to receive alerts on driver licensing status changes.

2. Suspended or revoked CDLs

A licensing authority can suspend or revoke a CDL for reasons like driving under the influence (DUI) in a person vehicle or having unpaid child support obligations. If the carrier doesn’t monitor a driver’s MVR more than the minimum of once per year, the driver may lose CDL privileges or any ability to operate vehicles without their company being aware.

Best practices:

1.Use continuous MVR monitoring to receive alerts on driver licensing status changes.

2.Implement a company policy requiring drivers to immediately notify the company of any moving violation or warning, in addition to convictions.

3. Missed drug and alcohol tests

CDL-vehicle drivers must be part of a Department of Transportation (DOT) drug and alcohol testing program. This includes pre-employment, random, and post-accident testing. A top acute (most serious) DOT audit violation each year is issued to carriers not having a DOT testing program. The DOT requires a testing program for any carrier operating CDL vehicles in intrastate or interstate commerce.

Best practices:

1.Hire a third party to provide compliance guidance on the applicability of safety regulations, and

2.Outsource the management of any DOT drug and alcohol testing and Clearinghouse requirements.

4. Failed English Language Proficiency (ELP) assessments

At hire, carriers must verify that CMV drivers are able to read and speak the English language well enough to:

1.Interact with enforcement officers,

2.Complete forms, and

3.Understand road signs.

Since June 25, 2025, during a roadside inspection, enforcement can conduct a two-step assessment of ELP. Officers can place a driver out-of-service, disqualifying them, if the driver cannot answer basic questions or recognize road signs.

Best practice:

1.Assess all driver applicants by simulating a roadside inspection as the last step of the road test process.

Key to remember: Closely monitor driver qualifications with best practices that exceed regulatory minimums.

What you need to know about the new HOS programs

The Split Duty Period pilot program will allow drivers to pause the 14-hour driving window for no less than 30 minutes and no more than 3 hours. This allows drivers to choose to extend the 14-hour window by taking one off-duty, sleeper berth, or on-duty/non-driving period within that time limit.

Participation in this program is limited to around 256 commercial driver’s license holders who meet the eligibility criteria. Passenger-carrying vehicles aren’t eligible.

The Flexible Sleeper Berth pilot program will look to more sleeper berth split options beyond the current 8/2 and 7/3 options (e.g., splitting the 10-hour-off-duty requirement into 6/4 and 5/5/ splits). This would allow temporary regulatory relief from the regulation requiring one period of at least 7 consecutive hours in the sleeper berth.

Participation in this program is limited to around 256 commercial driver’s license holders who regularly use the sleeper berth. Participants’ data will be shared for 4 months, during which they will spend 1 month following the current regulations and 3 months under the new proposed flexibility.

FMCSA data collection

The Federal Motor Carrier Safety Administration (FMCSA) plans to study these two programs to see how they may increase flexibility in current hours-of-service (HOS) regulations.

For the first program, the FMCSA will collect data and determine whether the added flexibility has an impact on safety outcomes.

For the second program, the FMCSA will test the safety of splitting up off-duty time and explore how it may impact driver fatigue and other safety performance indicators.

Get your comments in

The FMCSA is requesting comments for these two new programs by November 17, 2025, through the Portal, by mail, by hand delivery, or via fax.

The requirement

Under 49 CFR 396.17, every CMV — including trucks, tractors, and trailers of any size — must undergo a comprehensive inspection at least once every 12 months. This is tied to the “commercial motor vehicle” definition in 49 CFR 390.5T, which includes vehicles or vehicle combinations over 10,000 pounds and operating in interstate commerce, even if a commercial driver’s license is not required.

The inspection must cover all components listed in Appendix A to Part 396, and proof of passing the inspection must be carried on or with the vehicle at all times.

Acceptable documentation

How does a driver prove the vehicle(s) passed the inspection? There are two ways:

1. Carry a copy of the full inspection report described in 396.21; or
2. Point to a sticker or decal on the vehicle, showing:
   1. The date of inspection (not the due date);
   2. The name and address where the full inspection report is located (so an inspector knows where to find it);
   3. A unique vehicle ID (VIN, plate number, fleet number, etc.), unless the vehicle is clearly marked with a unique ID (cross-referenced on the long inspection form); and
   4. A certification that the vehicle passed inspection under 396.17.

The sticker may be located anywhere, as long as the driver knows where it is and it’s not overly difficult for the inspector to find it.

Violations typically occur due to:

• Missing, obscured, or expired inspection documentation on the vehicle;
• Failure to inspect trailers, converter dollies, or other vehicles that form part of a CMV;
• Misunderstanding the required inspection interval (or simply forgetting to do the inspection on time); or
• Assuming that some other type of inspection qualifies.

During an audit, if the investigator finds that 10 percent or more of your fleet’s annual inspections were not done as required, it’s considered a “critical” violation that could harm your safety rating. In addition, a J. J. Keller analysis found that the average fine that motor carriers paid for this violation was $5,713 (over the period from 2021-2024).

Liability is another key concern. A crash involving a CMV that wasn’t inspected in the past year could call your safety practices into question and result in a sizable verdict in the plaintiff’s favor.

How to stay compliant

Motor carriers must take proactive steps to avoid these costly violations: • Ensure annual inspections are performed on time. Schedule inspections before the 365-day mark from the last inspection.

• Inspect all vehicles. From lightweight one-axle pieces of equipment to flatbeds, shuttle buses, dry vans, and Class 8 tractors, be sure to include all vehicles in the inspection program, not just power units.
• Use qualified inspectors. Inspectors must meet the qualifications outlined in 396.19 — even if they work for a third party — and you must be prepared to provide proof of those qualifications to an auditor. An individual may be qualified by having at least one year of experience, but you need to be sure it’s documented.
• Maintain proper documentation. Ensure drivers know where the sticker or report for each vehicle is located and that it’s legible and current. Also be sure to keep inspection reports for 14 months.
• Ensure your state inspection program is “equivalent.” If your vehicles are inspected annually under a state-mandated program, make sure the program is on the federal list of inspection programs that are considered “equivalent” to the inspection required under 396.17. If not, you’ll need to do another inspection before operating across state lines.
• Audit your fleet regularly. Conduct internal audits to verify inspection dates and documentation. Identify and correct gaps in your compliance program.
• Train drivers and maintenance staff. Educate drivers on the importance of carrying proof of inspection, and on the importance of checking for that proof during their pre-trip inspections. Train maintenance personnel on inspection standards and documentation requirements.

With violations climbing, motor carriers must treat 396.17 compliance as a top priority. The cost of noncompliance isn’t just financial — it can lead to out-of-service orders, fines, failed audits, liability, and reputational damage.

Key to remember: Stay ahead of the curve when it comes to annual inspections. Review your inspection protocols and ensure every vehicle in your fleet is documented, inspected, and compliant.

‘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 10 392.2 violations 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.

The number tell the story

Out of 4,629 inspections, there were 1,169 hazmat -related violations. Here’s the shocker, more than half of those (598 violations to be exact (51%)) were serious enough to place vehicles OOS. That means those vehicles couldn’t continue down the road until the issues were fixed.

So, what kind of issues were inspectors finding? Here’s a quick look at some of the most common issues found in the U.S.:

• Placarding violations: 192 total (non-bulk and bulk)
• Package marking issues: 126 total
• Missing emergency response information: 70 violations
• No PHMSA registration: 35 violations
• Leaking packages: 18 violations
• Undeclared hazmat: 16 violations

What gets you put out of service?

Not all hazmat violations will get you placed OOS. According to the CVSA OOS criteria, here are some of the violations that can get you sidelined:

• Missing hazmat shipping papers
• Missing 50% or more of required markings or placards
• Displaying incorrect placards for the hazard
• Having unauthorized, damaged, or leaking packaging
• Improper or no cargo securement
• Transporting non-compatible hazmat

What's being hauled?

During the blitz, inspectors looked at 7,294 packages across all nine hazmat classes. The most common materials found included:

• Class 3 (Flammable liquids) – 2,478 packages
• Class 2 (Gases) – 1,239 packages
• Class 8 (Corrosives) – 997 packages

What you can do

There are some actions you can take to reduce or eliminate your chances of receiving an OOS violation. To stay compliant and safe:

• Double-check your placards, labels, and markings.
• Make sure you have your hazmat shipping papers.
• Inspect your cargo for leaks or damage before hitting the road.
• Stay up to date on hazmat training.

Key to remember: The CVSA’s Road Blitz isn’t just about enforcement, it’s about safety. These inspections help keep dangerous materials from causing harm on the road.

Temporary reassignment for intermittent leave

When employees need foreseeable intermittent or reduced-schedule FMLA leave for planned medical treatments, employers may temporarily reassign them to a different position if it better accommodates the leave schedule.

This alternate position must have the equivalent in pay and benefits, but can differ in job duties. The reassignment should last only as long as needed, and employers must restore employees to their original or an equivalent position when the need for intermittent leave ends.

Unforeseeable intermittent leave works differently. When employees need unforeseeable intermittent leave, employers may not temporarily reassign employees to a different position. Employers may only reassign employees for intermittent leave needed for planned medical treatment.

Reassignment after leave

The FMLA guarantees employees the right to return to the same or an “equivalent” (virtually identical) position after leave. An equivalent position is defined as one with not only substantially similar pay, but also benefits and working terms.

These terms include:

• Location,
• Shift,
• Schedule, and
• Opportunity for bonuses, profit-sharing, and other similar discretionary and non-discretionary payments.

If business needs require structural changes, employers should document that these changes would have occurred regardless of the employee’s leave status.

Employers should document all communication, decisions, and the rationale for job reassignments to help show compliance.

Key to remember: Employers may reassign employees on FMLA leave to other positions only in certain limited situations.

FMLA certification basics

Employers aren’t required to use certifications, but if they do, the U.S. Department of Labor (DOL) has five different certification forms to use for various FMLA leave situations.

The forms are as follows:

1. Certification of Health Care Provider for Employee's Serious Health Condition,
2. Certification of Health Care Provider for Family Member's Serious Health Condition,
3. Certification of Qualifying Exigency for Military Family Leave,
4. Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave, and
5. Certification for Serious Injury or Illness of a Veteran for Military Family Leave.

Let’s focus on the first two, as these are the most common ones HR administrators use.

Who can fill out an FMLA certification?

The FMLA regulations describe the person who has the authority to fill out a certification as a “health care provider.” The good news is, the regulations include a lengthy list of medical professionals who fit this role.

Under the FMLA, a health care provider includes:

• A doctor of medicine or osteopathy,
• A podiatrist,
• A dentist,
• A clinical psychologist,
• An optometrist,
• A chiropractor (limited to manual manipulation of the spine as demonstrated by X-ray),
• A nurse practitioner,
• A nurse midwife,
• A clinical social worker,
• A physician assistant,
• A Christian Science practitioner, and
• Any health care provider from whom the employer or the employer's group health plan's benefits manager will accept a medical certification to substantiate a claim for benefits.

To be qualified to fill out FMLA forms, medical professionals must be authorized to practice in the state and perform within the scope of their practice. This means that the provider must be authorized to diagnose and treat physical or mental health conditions.

What about doctors in a foreign country?

If an employee or an employee's family member is visiting another country, or a family member resides in another country, and a serious health condition develops, the employer must accept a medical certification from a health care provider who practices in that country. This includes second and third opinions.

If a medical certification from a foreign health care provider is not in English, the employee may be required to provide a written translation of the certification.

Key to remember: The FMLA regulations spell out which medical professionals can fill out certification forms.

The intent of the standard

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

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

License and certification Q&A

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

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

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

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

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

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

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

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

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

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

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

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

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

Operator Impairments

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

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

Keys to Remember

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

What Is OSHA 1910.38?

OSHA 1910.38 requires employers to develop and maintain an EAP whenever another OSHA standard requires it. The EAP must be:

• Written and accessible (unless the employer has 10 or fewer employees, in which case it must be communicated orally), and
• Reviewed with employees when the plan is created, changed, or when an employee’s responsibilities under the plan change.

The plan must include contact information for employees who can explain the plan, plus procedures for:

• Reporting a fire or other emergency,
• Emergency evacuation, including exit route assignments,
• Critical operations,
• Accounting for all employees after evacuation, and
• Rescue and medical duties.

What exactly are “Other Emergencies?”

OSHA’s use of the term “other emergencies” in 29 CFR 1910.38 is intentionally broad. This flexibility reflects the evolving nature of workplace threats, many of which go beyond traditional hazards like fires or chemical spills. According to OSHA guidance, “other emergencies” may include:

• Explosions
• Severe weather events (tornadoes, hurricanes, floods)
• Chemical spills or leaks
• Terrorist or bomb threats
• Workplace violence •Medical emergencies
• Active shooter situations
• Radiological or biological hazards
• Cybersecurity breaches
• Infrastructure failures (water main breaks, power outages)
• Mental health crises

How can an organization tailor EAPs to their risk environment?

A one-size-fits-all approach rarely works because every workplace faces different threats based on its industry, location, workforce, and other factors. The ability to customize the plan ensures that employees know exactly what to do when the unexpected happens. Here are some examples:

•Chemical manufacturing facility: Beyond fire and evacuation procedures, these facility EAPs may include detailed spill containment protocols, decontamination steps, and coordination with hazardous materials (HAZMAT) teams. Plans should also address chemical exposure first aid, ventilation shutdown procedures, and emergency notification systems for nearby communities.

Data centers: These environments rely on uninterrupted operations, so Emergency Action Plans (EAPs) may also cover flooding scenarios, electrical hazards, and Heating, Ventilation, and Air Conditioning (HVAC) failures that could lead to overheating. Contingency measures might include backup power systems, server shutdown protocols, and communication plans for Information Technology (IT) teams to minimize downtime and data loss.

Tornado and severe weather prone regions: In addition to standard evacuation routes, workplaces should implement shelter-in-place protocols for severe weather. This includes designating safe interior rooms, stocking emergency supplies, and establishing communication plans for remote or traveling employees to ensure continuity of operations during and after the event.

Schools and hospitals: These facilities face unique challenges due to their public access and vulnerable populations. EAPs should prioritize active shooter response, mental health crisis intervention, and lock-down procedures. They should also include evacuation plans for individuals with mobility limitations, family reunification strategies, and coordination with local law enforcement and emergency services.

OSHA encourages employers to conduct risk assessments, engage in scenario-based training, and coordinate with local emergency services to ensure their plans are both comprehensive and actionable.

While OSHA sets the minimum requirements, many organizations choose to go further. Enhanced plans may include:

• Annual drills and refresher training,
• Coordination with local emergency services,
• Mental health support following traumatic events, and
• Business continuity planning.

Key to remember: Emergencies come in many forms, so your response plans should too. Effective preparedness is about being ready for any threat, from fires to severe weather, or chemical spills to cyberattacks. Take action now to review your risks, update your EAP, and prepare your team to face the unexpected with confidence.

Estimate for the Annual Summary

If the day count continues into the next calendar year, employers can use the estimate to prepare the 300A Annual Summary. OSHA addresses this at 1904.7(b)(3)(ix). Again, the employer must later update the 300 Log when the actual number of days becomes known. However, the employer does not need to update the 300A after it was certified and posted, even if the estimated day count was later corrected.

When a case carries over to another calendar year, do not re-enter the case in the next year’s 300 Log. The purpose of counting days is to compare the severity of an injury or illness (more days means more severe). For that purpose, it doesn’t matter if the day count crossed a calendar year.

For example, if an injury that occurred in December involved 97 days of restriction, the fact that those days continued into the next calendar year does not matter since the number simply indicates the severity of the condition.

Count all calendar days

Employers must count all calendar days that the employee would have been unable to work, or should have performed only restricted work, regardless of scheduled working days. That includes weekends, holidays, vacation days, and other non-working time. Employees work different schedules and some businesses remain open on weekends and holidays, so OSHA requires counting calendar days for consistency. The reason, as noted, is to accurately compare the severity of conditions.

Sometimes an employee gets injured on a Friday, or just before a holiday or planned vacation, but returns the next scheduled working day. Does the employer need to count days away or restriction? OSHA clarified that employers only need to count those days if they receive information that the employee should not have worked, or should have performed only restricted work, during those non-working days.

If a doctor tells an employee to “take it easy” until the next scheduled working day, the employer should request clarification. For example, if the employee would have been restricted from performing one or more routine job functions or from working a full shift, that would count as restricted work (even if the employee wasn’t scheduled to work). For related information, see our article, Restrictions must affect routine functions to count as restricted work.

OSHA’s regulation at 1904.7(b)(4)(vii) also states, “If you are unable to obtain this additional information from the physician or other licensed health care professional who recommended the restriction, record the injury or illness as a case involving restricted work.” Note that an incident can involve days away or restrictions even if the employee did not get medical treatment beyond first aid.

Key to remember: When an employee needs restrictions or time off, employers might not know how long the condition will last, but they must enter an estimated day count on the 300 Log until the exact day count is known.

What are the requirements for safeguards?

Ultimately, your machines need guards. Here’s a roadmap to make sure safeguards are in place:

• Make a list of all the machines in your workplace,
• Determine all the places on the machines where movement occurs,
• Identify what guards must be in place at these places of movement,
• Install the guards or ensure that the manufacturer’s pre-installed guards are still effective,
• Replace missing or defective guards, and
• Repeat the first five bullet points above at least annually or more frequently as needed.

Usually, when there are machine guarding issues, one of these six things is missing. I recommend going through this roadmap at least annually, and each time a machine is serviced or repaired. I often found that workers remove guards to perform routine maintenance on the machine or fix it and forget to put them back.

Improper machine guarding continues to be a commonly cited safety violation. “Safety Pays” isn’t just a catchy slogan. It’s a reality — the average machine guard costs under one hundred dollars. But the most common excuse for not having proper machine guards is because the employer “didn’t have the money” to buy them. I can’t stress enough, your company’s safety investments will yield returns. Millions of dollars of unused safety-related grant money are untouched every year. Find the money — your workers are worth it!

CRA first cut its teeth on the Ergonomics rule

On November 14, 2000, OSHA published the Ergonomics Program final rule in the Federal Register. OSHA claimed that nearly 600,000 musculoskeletal disorders (MSDs) with days away from work were reported each year by general industry employers. The agency warned that exposure to ergonomic risk factors leads to MSDs at work.

The rule was said to “address the significant risk of employee exposure to ergonomics risk factors … in general industry.” However, after OSHA issued the rule, it met with Congressional opposition. Four months later, the rule was invalidated under the CRA. A joint resolution disapproving the Ergonomics rule was enacted in March 2001.

In recent years OSHA told the Department of Labor Office of Inspector General that it has been limited in its ability to target MSDs due to the 2001 CRA denial.

Workings of the CRA

Under the CRA, if Congress enacts a joint resolution of disapproval within 60 days after a rule is submitted, the rule must not take effect (or shall not continue in effect). For a rule to be invalidated, the President must sign the joint resolution, or, if vetoed by the President, Congress must override that veto.

Importantly, the Act states, “A new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution.”

Latest court case

Congress has since issued other CRA disapproval resolutions. The one tied to the recent court case impacts a 2016 Federal Communications Commission (FCC) final rule that amended data breach reporting obligations. This disapproval was signed into law in April 2017.

The trouble started when FCC published a rule in 2024 to again revise its data breach reporting requirements. Petitioners sought judicial review of that rule, contending, among other things, it violates the CRA because it is “substantially the same” as the 2016 amendments.

Court majority finding

Now, in a two-to-one decision, the U.S. Court of Appeals for the Sixth Circuit denies the petitions for review in case numbers 24-3133, 24-3206, and 24-3252. The judges emphasize that Congress disapproved the entire 2016 rule submitted by the FCC. Therefore, the two rules must be wholly compared, not just their components, the court reasons. If Congress intended to prohibit FCC from issuing a new rule that was substantially the same as any part of a prior rule, it could have said so, argues the opinion.

The court used the Oxford English Dictionary to define “substantially” and declares that the two rules are not substantially the same. According to the Sixth Circuit, the 2024 rule:

• Is a “mere subset of the broader compendium of privacy rules” from 2016,
• Extends reporting requirements to telecommunications relay services providers,
• Has materially less prescriptive language regarding what goes in a customer notice, and
• Defines “breach” differently and includes an exception.

Therefore, the court concludes that FCC’s issuance of the 2024 rule did not violate the CRA. The petitions for review are denied by the court majority.

Court minority finding

The minority argues that:

• The majority did not focus on the similarities of the two rules, and the differences were minor;
• The two rules adopted “nearly identical regimes for reporting breaches”;
• By disapproving the whole 2016 rule, Congress disapproved each of its parts; and
• The two rules are substantially the same and, therefore, the CRA blocks the new rule.

Implications

The case gives OSHA a path to publish a narrow or different Ergonomics rule. For example, the agency could focus a rule on:

• Ergonomics for a particular high-hazard industry(ies);
• A particular MSD (like back injuries) or risk factor (like lifting); and/or
• Certain ergonomics program elements, e.g., hazard assessment and control measures OR employee training and reporting.

Ultimately, a new rule could enable OSHA to tackle work-related MSDs, which the agency claims “are among the most frequently reported causes of lost or restricted work time.”

The petitioners may seek to have the "full" Sixth Circuit review the case, given the court split and the broad implications of the case. Instead of the three-judge panel, all active judges on the Sixth Circuit would hear the case, if a rare en banc review is granted. Later, the case could head for the Supreme Court. Yet, the high court could decide not to take it, and the appeals court decision stands. For now, the new interpretation marks a breakthrough, handing agencies a roadmap to maneuver through CRA barriers.

Key to remember

OSHA’s Ergonomics Program rule was struck down by the CRA in 2001, but a new court opinion clears the way for the rulemaking to return.