Substance Abuse in Construction and OSHA Responsibilities

What’s changing and why it matters

Although EPA has been deregulating or loosening some requirements, there are still some standards being tightened across multiple fronts in the coming year:

• Renewable fuel standards (RFS): The EPA proposed higher volume requirements for 2026, including 24.02 billion renewable identification numbers (RINs), up nearly 8% from 2025. This increase pushes stricter expectations on fuel producers and organizations purchasing renewable fuels.
• Stormwater multi-sector general permit (MSGP): A new MSGP set to take effect by February 2026 will require quarterly PFAS indicator monitoring, expanded benchmark sampling, and resiliency measures in stormwater control designs.
• PFAS Reporting under the Toxic Substances Control Act (TSCA): TSCA Section 8(a)(7) mandates PFAS manufacturing and import data collection beginning in April 2026, through October 2026, with extended deadlines for certain small manufacturers.

Failure to prepare could lead to fines, reputational damage, supply chain disruptions, and permit delays. Companies that weave compliance planning into their 2026 strategy will be positioned not just to meet legal deadlines but to sustain operations smoothly.

Key areas of impact

• Renewable fuel standards (RFS) and air emissions The proposed increase in 2026 Renewable Identification Numbers (RIN) volumes, from 24.02 billion to 24.46 billion for 2027, signals tightening air and fuels policy that affects fuel use and emissions accounting.
• Stormwater management The upcoming 2026 MSGP requires expanded quarterly PFAS monitoring, new benchmark triggers, corrective action plans, and integration of climate resilience in design standards.
• PFAS disclosure (TSCA Section 8(a)(7)) Manufacturers and importers of PFAS must submit electronic reporting of usage, volumes, disposal, and exposure data between April and October 2026, with extensions available for smaller operations.

Steps to take now

• Audit compliance programs: Cross-check operations against RIN inventory, stormwater permits, and TSCA reporting duties.
• Upgrade monitoring and recordkeeping: Implement robust electronic systems to track PFAS, stormwater quality, fuel volumes, and emissions.
• Staff training: Educate teams on PFAS obligations, new stormwater protocols, and RFS structures.
• Engage regulators early: Comment on proposed rules, consult during permit drafting, and flag issues during the notice-and-comment period.

Looking ahead

The EPA’s 2026 updates reflect a trend toward increased transparency and environmental accountability. Companies that treat compliance as strategic will not only avoid enforcement but also gain resilience and stakeholder trust.

Key to remember: Start planning now. Early action on EPA rule changes will save time, money, and headaches when enforcement begins.

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.

Erosion controls vs. sediment controls

Both types of controls are important, but their functions are distinct. Construction sites should use erosion controls as the primary method and sediment controls as the backup method to reduce stormwater pollution.

Erosion controls prevent the land from wearing away. These measures stop soil particles from being dislodged and transported by stormwater or wind. Erosion controls are the first line of defense against stormwater pollution.

Erosion control examples include:

• Shoring excavated areas with retaining walls,
• Conducting construction work in concentrated areas at different times to minimize soil exposure, and
• Installing erosion control blankets on steep slopes.

Sediment controls capture soil particles that have been dislodged (i.e., eroded) before stormwater or wind moves them off the construction site. Sediment controls are the second line of defense, serving as backup BMPs.

Examples of sediment controls are:

• Protecting storm drain inlets with filtering materials (such as rock-filled bags),
• Installing fiber rolls around the perimeter to retain soil dislodged by runoff from small areas, and
• Adding a sedimentation basin to receive dewatering discharges.

Common BMP examples

EPA’s “National Menu of Best Management Practices (BMPs) for Stormwater-Construction” webpage details erosion controls and sediment controls frequently used at construction sites, including (but not limited to) the following:

Use both types of BMPs

The most effective way to control stormwater pollution at construction sites is by applying a selection of erosion controls and sediment controls that are coordinated to work together. Consider these examples:

• After an area has been graded, the exposed soil must be stabilized. A site can lay sod over the exposed soil (erosion control) and install a silt fence to catch any contaminated soil moved out of the area by stormwater (sediment control) while the sod takes root.
• Stormwater from upstream locations can flow through a construction site. To protect the disturbed land, a site can build a berm that diverts runoff away from the construction area (erosion control) to a basin where the sediment settles before the runoff is discharged (sediment control).
• When grading an area with a slope, stormwater can transport contaminated soil down the disturbed slope. A site can install a temporary slope drain that directs the runoff at the top of the slope to a pipe that carries it down the side of the slope (erosion control). The site may also add a sediment trap at the slope drain outlet to remove sediment from the runoff before it’s released (sediment control).

Check state and local requirements

Most states issue NPDES construction stormwater permits. Check the permit to confirm erosion control and sediment control requirements, as they may be more stringent at the state level.

Additionally, some local governments may impose requirements on construction sites. However, unless the local program is designated as a qualifying local program, compliance with local regulations may not mean that your construction site is compliant with EPA’s rules (and vice versa). Confirm with the local government whether additional requirements apply.

Key to remember: Construction sites must implement erosion controls and sediment controls to prevent stormwater pollution.

What’s changing

Motor carriers should review the changes now to determine how they might impact their operations. Except as noted, the new rules take effect on March 23, 2026:

• Bumper labels: Motor carriers will no longer need to ensure that their vehicles’ rear-impact guards have a permanent certification label from the manufacturer. These labels often fall off or become unreadable over time, resulting in citations even when guards meet the safety standard.
• License-plate lamps: Tractors will no longer need a working rear license-plate lamp while pulling a trailer. If there’s no trailer, the light will need to be operational.
• Spare fuses (effective April 20, 2026): Drivers will no longer be required to carry spare fuses for powering required equipment. The FMCSA says today’s vehicles don’t commonly suffer from blown fuses, making the requirement unnecessary.
• eDVIRs: Though already allowed under 49 CFR 390.32, the vehicle inspection rules in Part 396 will explicitly allow drivers and motor carriers to use electronic drivers’ vehicle inspection reports (DVIRs).
• Auxiliary fuel pumps: Motor carriers will be able to use gravity- or siphon-fed auxiliary fuel pumps with tanks up to 5 gallons, mounted on the trailer and used only when the vehicle is not in motion. The rule revises 393.65(d) to reflect modern small-capacity auxiliary systems used for trailer-mounted equipment. capacity auxiliary systems used for trailer-mounted equipment.
• Fuel tank fill limit: It will no longer be a violation to use fuel tanks that can be filled beyond 95 percent of their capacity. Modern liquid-fuel tanks have vented caps that can safely accommodate a 100-percent fill, the FMCSA says.
• Liquid-burning flares: The FMCSA has removed the option to use liquid-burning flares as emergency warning devices. Drivers must use reflective triangles or solid-fuel flares instead.
• CDLs for military techs: Dual-status military technicians (as defined in 10 U.S.C. 10216) are now explicitly included in the commercial driver’s license (CDL) exemption for military vehicle operations. Previously, only National Guard technicians qualified; Air Force Reserve and Army Reserve technicians were excluded.
• Portable conveyors: Portable conveyors used in the aggregate industry and manufactured before 2010 are now exempt from the “brakes on all wheels” requirement, provided certain weight and speed limits are met.
• Tire markings: The FMCSA has clarified that its rules do not require tire load-rating markings on sidewalls. That requirement falls to manufacturers only, not motor carriers.
• Vision waivers: An obsolete grandfathering provision related to an old vision waiver study program has been removed from the regulations (391.64) in favor of today’s alternative vision standard in 391.44.
• Water carriers: The FMCSA has removed outdated references to “water carriers,” updating parts 365, 370, 379, 386, and 390 to reflect the agency’s lack of jurisdiction over maritime carriers.

More rules on the way?

Additional deregulatory actions proposed last May are still in process but are expected to be finalized soon. This includes rules to:

• Remove the need to carry a user manual for electronic logging devices (ELDs).
• Remove the requirement for drivers to self-report moving violations.
• End the requirement that carriers return completed roadside inspection reports unless requested by the issuing agency.
• Exempt certain buses and hazmat drivers from stopping at railroad crossings equipped with active warning devices (unless the devices are activated).
• Record information about accidents where medical treatment consisted only of imaging or a prescription without actual treatment.
• Delete the outdated requirement to retrofit older trailers with retroreflective tape.

Key to remember: The FMCSA has finalized 12 deregulatory actions among 18 proposed in May 2025. The changes could save time and money for both motor carriers and drivers.

What is the NSC?

In 1987, the federal, provincial, and territorial Ministers responsible for Transportation and Highway Safety recognized that due to the deregulation of transportation, there was a need for harmonization and reciprocity in the management of commercial vehicles across Canada. The ministers then signed a memorandum of understanding to develop and implement the NSC to encourage road safety, promote efficiency in the motor carrier industry, and achieve consistent safety standards. The National Safety Code standards remain important instruments of public policy in promoting public safety and the safe and efficient movement of people and goods on Canadian roads.

What are the 16 standards?

The NSC is a set of minimum performance standards, applying to all persons responsible for the safe operation of commercial vehicles. There are 16 NSC standards made up of the following:

• Standard 1 Single Driver Licence Concept
• Standard 2 Knowledge and Performance Tests (Drivers)
• Standard 3 Driver Examiner Training Program
• Standard 4 Driver Licencing Classification
• Standard 5 Self-Certification Standards and Procedures
• Standard 6 Determining Driver Fitness in Canada
• Standard 7 Carrier and Driver Profiles
• Standard 8 Short-Term Suspension
• Standard 9 Commercial Vehicle Drivers Hours of Service
• Standard 10 Cargo Securement
• Standard 11 Maintenance and Periodic Inspection
• Standard 12 CVSA On-Road Inspection
• Standard 13 Trip Inspection
• Standard 14 Safety Rating
• Standard 15 Facility Audits
• Standard 16 Entry Level Training (Class 1)

Now that we have a better understanding of what the NSC represents and what the 16 standards are, let’s take a deeper dive into the standards that apply, starting with Motor Carriers.

NSC Standard 14 — Safety Rating

You might be wondering why we are starting with Standard 14. All provinces in Canada are required to issue an NSC number to all commercial carriers in their governing jurisdiction. A Safety Fitness Certificate (SFC) contains the NSC number, which is the unique identifier for each commercial operator. Ontario calls this number a Commercial Vehicle Operator’s Registration or CVOR.

If you have registered a vehicle that is regulated under the National Safety Code program in Canada, you are required to apply for a SFC or CVOR (Ontario). The SFC or CVOR gives you permission to operate a commercial vehicle.

There have been many new changes recently to the process of not only applying for an SFC but also in maintaining the required certificate. For example, in Alberta, it includes completing an NSC knowledge test online or NSC in a registry office, completing an NSC audit within 12 months of obtaining your SFC, and renewing your certificate every three years.

A provincial authority may not issue a safety fitness certificate to an extra-provincial motor carrier undertaking unless the provincial authority has determined that the undertaking has a “satisfactory”, “satisfactory unaudited” or “conditional” safety rating, as set out in section 5 of Part C of NSC Standard #14.

Safety Rating Categories

Responsibility for motor carrier safety resides, first and foremost, with motor carrier management. The Safety Rating Standard (Standard 14) establishes the motor carrier safety rating framework by which each jurisdiction shall assess the safety performance of motor carriers. There are four safety rating categories as follows:

• Using the information in the motor carrier profile;
• Assigning a value to each of the data listed in the motor carrier profile taking into account its severity and potential safety impact, in accordance with the National Safety Code Standard 7, Carrier Profile:
  • For the 24 months preceding the determination; or
  • In the case of a motor carrier whose motor carrier profile was established less than 24 months prior to the determination, for the period since its establishment;
• Normalizing the weighted data using the motor carrier’s fleet size to reflect the motor carrier’s exposure to risk; and
• Assigning a safety rating to the motor carrier in accordance with the safety rating categories.

The NSC’s safety fitness rests on three building blocks:

• NSC Standard 7: Carrier and Driver Profiles
• NSC Standard 14: Safety Rating
• NSC Standard 15: Facility Audit

Together, these standards provide the safety rating and management framework by which each jurisdiction assesses the safety performance of motor carriers. In part 3, we’ll cover Standards 7 and 15 in greater detail.

Key to remember: We have just touched the surface of the NSC standards and covered likely one of the most important when it comes to maintaining a safe rating and compliance with Jurisdictional regulations.

A growing threat to motor carriers

Motor carriers nationwide are being urged to stay alert as FMCSA reports a surge in deceptive emails crafted to look like legitimate government communication. These messages frequently include professional looking documents, official appearing logos, and language that mirrors real FMCSA notices. While they may appear authentic, they are engineered to harvest personal data, financial information, or login credentials that can compromise a carrier’s operations.

FMCSA has emphasized that these emails do not originate from USDOT or the agency itself. One of the most reliable warning signs is the sender’s email domain. Official FMCSA correspondence almost always comes from an address ending in .gov. Although there are rare exceptions, such as customer satisfaction surveys sent after contacting the FMCSA Contact Center, those messages never request personal, financial, or account information.

How scammers create a false sense of urgency

Industry reports note that the sophistication of these phishing attempts has increased significantly. Many messages convey a sense of urgency, warning recipients that their USDOT number is at risk, that compliance updates are overdue, or that immediate payment is required to avoid penalties. These tactics are designed to pressure carriers into responding quickly without verifying the source.

FMCSA stresses that it never demands payment or sensitive information through unsolicited email. Any message requesting such information should be treated as a scam.

Key warning signs to watch for

Motor carriers can protect themselves by watching for several common red flags:

• Non-government email domains or sender addresses that appear slightly altered;
• Unexpected requests for payment, especially those tied to threats or deadlines;
• Embedded links directing users to unfamiliar login pages;
• Attachments that claim to be compliance documents or renewal notices; and
• Spelling or formatting inconsistencies, even in otherwise professional looking messages.

Protecting your business from phishing attempts

To reduce the risk of falling victim to these scams, FMCSA recommends that carriers:

• Verify the sender’s domain before responding to any message;
• Avoid clicking links in unsolicited emails, especially those requesting payment or personal data;
• Log in directly to official FMCSA or USDOT portals rather than using email links; and
• Report suspicious emails to the appropriate fraud reporting channels.

As phishing schemes continue to evolve, awareness remains the strongest defense. Carriers who stay informed, verify communications, and follow FMCSA’s recommended precautions can significantly reduce their risk. 

Key to remember: In an industry where compliance and safety are paramount, protecting your business from fraud is just as critical as protecting your fleet or cargo.

Be ready, look ready

Looking prepared goes well beyond having a solid lesson plan. It’s about presenting yourself in a way that builds confidence before the session begins.

• Dress neatly and professionally to reinforce your credibility and show that the training matters.
• Bring enough handouts for every driver, plus a few extras.
• Arrive early to organize your materials, gather your thoughts, and welcome participants as they arrive.
• Make sure that all your electronic or technical equipment is set up and functions properly.

Start on time

Beginning your session at the scheduled time sends a clear message. It conveys that the training is important, and so are your drivers’ schedules. Starting late can frustrate those who arrived early or on time and can diminish your credibility before the session even begins. A timely start keeps the group focused and ready to learn.

Open with purpose and perspective

Begin each session by helping drivers understand the purpose of the training and why it matters.

To craft an effective introduction, put yourself in your drivers’ place. If you were attending the session, what would you want to know about it before starting? Framing the session from the drivers’ perspective creates early engagement and helps participants see the session’s value.

Set the tone

A lack of enthusiasm can quickly drain energy from a training session, no matter how strong the content. Displaying confidence and passion for the topic demonstrates your belief in its importance. When drivers see that you care, they’re far more likely to stay engaged.

End on time

Running beyond the scheduled end time can make drivers restless and reduce the impact of your session. Plan to finish about 10 minutes early. This gives you flexibility for discussion, clarifications, or final questions, while still honoring everyone’s time. A timely wrap up helps ensure your session ends with clarity and confidence.

Key to remember: Applying these five core practices sets the foundation for efficient training sessions that keep drivers engaged and deliver lasting results.

Obtaining a hazmat endorsement

The process for obtaining a hazardous materials (hazmat) endorsement requires a little patience and time. The process requires a driver to undergo a hazmat endorsement background check. The driver’s name and fingerprints will be sent to the Department of Homeland Security (DHS), which will make sure that the driver does not pose a security risk. Also, the driver needs to meet immigration standards and have a clean criminal and mental-health record.

The Federal Motor Carrier Safety Administration’s (FMCSA) entry level driver training (ELDT) rule took effect in February of 2022. An individual obtaining a hazmat endorsement for the first time must complete specific theory instruction prior to taking the required knowledge test. The training must be provided by a school or entity listed on the FMCSA’s Training Provider Registry (TPR).

These requirements are in place because drivers that are hauling hazmat are transporting some of the most dangerous cargo on the road. Before sending a driver through the hazmat endorsement process, you must ensure that the driver must obtain the hazmat endorsement in the first place. Did you know that hauling hazmat does not automatically mean a driver will require the hazmat endorsement?

What are the rules?

A CDL hazmat endorsement is required when a driver is hauling hazmat that must be placarded or when the driver is hauling a select agent or toxin. A CDL hazmat endorsement is not required if a hazmat load does not require placarding. The basic rule of thumb is that no placards mean no hazmat endorsement is required.

However, the hazardous materials regulations allow placarding even if it is not required, and it is called permissible placarding. In these situations, a placard would be voluntarily displayed, and no hazmat endorsement would be required.

Always plan ahead

Knowing whether a driver needs a hazmat endorsement will protect your drivers and ensure that they are compliant while transporting placarded hazmat loads.

If you’ve determined that your driver requires a hazmat endorsement, you may want to get started right away. The process for obtaining the hazmat endorsement can take several weeks. In the meantime, make sure drivers do not transport a load of placarded hazmat without the hazmat endorsement.

Key to remember: A hazmat endorsement is required when a driver is hauling hazmat that must be placarded.

Exceptions aren't exemptions from responsibility

The HMR includes many exceptions, such as limited quantities, excepted quantities, and materials of trade. These provisions are intentional. They reduce regulatory burden where risk is lower and make transportation more practical.

However, problems arise when those exceptions are misunderstood. Someone sees that a material is excepted from placarding, labeling, or shipping papers and assumes the hazmat rules no longer apply. Training gets overlooked, procedures loosen, and documentation disappears. In reality, most exceptions are narrow by design. They remove some requirements, not responsibility.

A familiar example

Limited quantities illustrate this well. Limited quantity shipments are often excepted from placarding and, in many cases, from labeling and shipping paper requirements. What’s often missed is that limited quantity materials are still hazardous materials under the HMR.

Classification still matters. Quantity limits still apply, as do general packaging requirements and employee training. Anyone who prepares, offers, or transports limited quantity hazmat as part of their job is still a hazmat employee, even if the shipment doesn't look like "hazmat" on the truck. Calling it "not regulated" skips that nuance and creates unnecessary risk.

The danger of stopping too early

Many compliance mistakes happen because someone stops reading after the first favorable sentence. They see phrases like excepted, not subject to, or does not require and move on. What they miss are the conditions and limitations that follow.

That relief comes with strings attached. Failing to read the full provision can mean using the wrong packaging, exceeding quantity limits, skipping required training, or misunderstanding when an exception no longer applies. Those gaps usually surface during an inspection, an incident, or a shipment that goes wrong.

Enforcement doesn't care about intent

"I thought it wasn’t regulated" carries no regulatory weight. From an enforcement standpoint, the question is whether the shipment met the conditions of the exception. If it didn’t, the full requirements apply, and violations can add up quickly.

This is especially true when exceptions are applied informally or without documentation. Without evidence that the material was evaluated and the remaining obligations were understood, it becomes difficult to defend the decision later.

"No paperwork" doesn't mean "no system"

Another common misconception is that if shipping papers aren’t required, internal controls aren't needed. Even when documentation doesn’t travel with the shipment, companies still need a way to show the material was properly classified, the correct exception was applied, and employees were trained for their functions.

Those results don't happen by accident. They require procedures, training records, and oversight, even when the shipment itself appears simple.

Where compliance really begins

In hazmat transportation, "not regulated" is almost never the right conclusion. A better question is which requirements apply and which don’t. Exceptions are useful tools, but they are not shortcuts around responsibility.

Understanding where regulatory relief ends is the difference between smart compliance and accidental noncompliance. When someone says a shipment is "not regulated," that shouldn’t end the conversation. More often than not, it's where the real work begins.

Conflicting accounts of employee behavior

In this case, a long-time employee who suffered from a spinal condition causing severe lower back pain had been granted several accommodations over the years, including leaves of absence and a modified work schedule. His condition was worsening, and he needed to miss full days of work to attend physical therapy.

A staff meeting led by the employee started a chain of events that resulted in his termination. The employer said the employee appeared lethargic and overmedicated at the meeting, and that he mentioned eating a gummy and said it made him high.

According to the employer, the employee said he needed to take smaller doses in the future and drew a picture of the gummy to show how much he should eat.

The employee denied being lethargic or overmedicated at the meeting, however, and said he told a story about taking a CBD gummy that had made him sick. The over-the-counter CBD product had been recommended by his doctor to relieve pain, and the employer was aware of his CBD use. The employee denied being high or drawing a picture of the gummy.

A drug test and firing

A few days later, a supervisor and human resources representative met with the employee to discuss the staff meeting. The employee denied using marijuana, admitted to using CBD, and agreed to be drug tested.

The company had a policy requiring drug and alcohol testing if there was a reasonable suspicion that an employee was not fit for duty. The company also had a last chance agreement policy that allowed an employee to return to work after being found not fit for duty due to drug or alcohol use.

The employee’s test was positive for marijuana, and there was a dispute over whether CBD use could have led to the result. The employer fired the employee a few weeks later because of:

• Conduct at the staff meeting,
• A positive test for marijuana, and
• Dishonesty about marijuana use.

Lawsuit claims retaliation for accommodation requests

The employee filed a lawsuit claiming that the employer violated the ADA by retaliating against him after he requested accommodations for his condition.

Evidence presented in court raised questions about the employer’s real reason for firing the employee:

• The employee showed that other workers were not fired after drug and alcohol offenses but were allowed to return to work under a last chance agreement.
• A witness from human resources could not recall other non-probationary employees being terminated for a first-time marijuana offense.
• Case managers from a firm that administered the company’s fitness for duty program expressed disbelief and outrage that the employee had been let go without being offered a last chance agreement.
• There were inconsistencies in the staff meeting account, with employees testifying that the employee had not been lethargic or overmedicated.
• The employee was fired a month after requiring an accommodation to attend full-day physical therapy sessions.

The court’s decision

The court found enough evidence showing that the employee’s worsening disability could have been a factor in his termination to send the case to a jury.

Although the employer did provide nondiscriminatory reasons for firing the employee, the employee provided evidence showing that they might not have been the true motive for his termination.

The timing of the firing, uneven discipline, and contradictory accounts of the staff meeting allowed the employee’s retaliation claim to move forward. The court did not decide whether the employee was right, but determined that enough questions had been raised to let a jury hear the case.

Key to remember: A positive drug test can be a reason to take action against an employee, but treating an employee with a disability more harshly than other employees can lead to a lawsuit.

Why the proposed change?

The DOL states that the proposed rule is “consistent with Supreme Court and federal circuit court precedent.”

“The rule we are proposing today is not only based on long-standing legal principles used in federal courts across the country but also is aimed at ensuring that workers and employers know how to apply those principles predictably,” said WHD Administrator Andrew Rogers in a press release. “The department believes that streamlined regulations in line with Congress’s intent when it passed the Fair Labor Standards Act would improve compliance, reduce misclassification, and reduce costly litigation in an economic environment that needs flexibility and innovation.”

The proposed rule would also apply the DOL’s streamlined analysis to the Family and Medical Leave Act and the Migrant and Seasonal Agricultural Worker Protection Act, both of which use the Fair Labor Standard’s Act’s (FLSA) statutory definition of “employ.”

How do the new standards differ from the Biden-era standards?

If passed into law, the 2026 proposed rule would:

• Apply an “economic reality” test to determine whether a worker is in business for himself or herself as an independent contractor or is an employee economically dependent on an employer for work.
• Identify and explain two “core factors” to help determine if a worker is economically dependent on an employer for work or in business for him- or herself:
  • The nature and degree of control over the work.
  • The worker’s opportunity for profit or loss based on initiative and/or investment.
• Identify other factors to help determine a worker’s status as an employee or independent contractor, including the amount of skill required for the work, degree of permanence of the working relationship, and whether the work is part of an integrated unit of production.
• Advise that the actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
• Provide eight fact-specific examples applying the factors to real-life circumstances.

The 2026 proposed rule is similar to the 2021 version which was finalized (but never took effect) at the end of President Trump’s first term, in that it leans heavily into the concept of an “economic reality” test, which analyzes if a person is financially dependent on an employer. If they are, then they’re an employee. The 2021 version also zeroed in on “core factors,” and a person’s opportunity for profit or loss, and the degree of control they have over their work.

The 2024 version under President Biden (which is currently still in effect today) focuses more on the “totality of the circumstances” when classifying workers. It looks at the whole picture and allows all factors to be weighed equally, with no predetermined weight assigned to a particular factor or set of factors. Instead, it uses a 6-part multifactor approach to classifying workers. These six factors include:

1. Opportunity for profit or loss depending on managerial skill.
2. Investments by the worker and the potential employer.
3. Degree of permanence of the work relationship.
4. Nature and degree of control.
5. Extent to which the work performed is an integral part of the potential employer’s business.
6. Worker’s skill and initiative.

Don’t these rules seem similar?

While the details of these rules might seem similar on the surface, the current 2024 rule makes it harder for employers to classify workers as independent contractors, which means companies must hire workers as employees, making them eligible for minimum wage, overtime pay, and other benefits that come with regular employment.

The crux of the 2021 and 2026 rules is that they allow a little more wiggle room for companies to classify workers as independent contractors, and, therefore, avoid having to comply with certain employment laws, like paying minimum wage.

Didn’t the DOL already rescind this rule?

Not officially, but in May 2025, the DOL issued a Field Assistance Bulletin to provide guidance to WHD field staff, and indirectly employers, about how to determine if someone should be classified as an employee or an independent contractor for purposes of FLSA compliance.

In a press release from May, the DOL said they were reviewing the 2024 independent contractor rule that went into effect during President Biden’s term.

Field staff were instructed not to apply the 2024 rule when investigating and enforcing FLSA employment matters. Instead, staff was to look back to the 2008 independent contractor rule, focusing on “economic realities” similar to the 2021 and 2026 versions.

What should businesses be doing in light of this new guidance?

For now, businesses should still follow the guidance from the 2024 Biden-era independent contractor rule, because that’s still in effect.

Employers should ensure they’re complying with all federal, state, and local employment laws, especially when it comes to properly classifying workers as either employees or independent contractors. Also, workers may not voluntarily waive their employee status and choose to be classified as independent contractors.

Even if the WHD field staff isn’t using the 2024 version, it’s still technically the law of the land. Nothing’s changed with the existing regulations relating to employee classification (or misclassification) but has more to do with how the WHD is allocating enforcement resources during the review of the 2024 rule. The 2024 rule will still be the basis of any private litigation.

No posting change expected

This rule isn’t expected to bring a mandatory change to the Employee Rights Under the Fair Labor Standards Act posting. The posting does mention independent contractors, but doesn’t include a detailed definition. Previous changes to the independent contractor rule haven’t brought about a mandatory FLSA posting change.

In addition, the proposed rule doesn’t mention a posting change and doesn’t include the cost of a posting change in the rule’s cost analysis.

Key to remember: The U.S. DOL announced plans to rescind the Biden-era federal independent contractor rule from 2024 through a formal rulemaking process.

Why DES slips under the radar

DES has a quantity of uncomfortable symptoms like dry or irritated eyes, blurred vision, headaches, neck pain, and even double vision. These symptoms can be signals of significant eye fatigue. The reason DES remains an "invisible epidemic" in many workplace safety discussions is due to a few factors:

• Non-Acute nature: Unlike a sudden injury, DES symptoms develop gradually. Employees might attribute discomfort to lack of sleep, allergies, or general stress rather than prolonged screen time.
• Lack of formal reporting: There isn't a standardized protocol for reporting "tired eyes" or "mild headaches" as a workplace injury, leading to under-reported statistics.
• Perceived normalcy: Many assume eye discomfort is an inevitable part of office work, normalizing symptoms that should be addressed.
• Focus on physical hazards: Traditional workplace safety prioritizes tangible physical risks, often overlooking ergonomic and visual health factors associated with digital work.

A 2025 Workplace Vision Health Report from VSP Vision Care shows just how impactful Digital Eye Strain can be. According to the report, nearly six in ten employees say digital eye strain negatively affects their productivity and effectiveness on the job. About half report that it diminishes their overall well-being and leaves them too tired to enjoy time outside of work and makes them more irritable throughout the day. Even more concerning, 27 percent of employees have taken time off due to eye strain.

How companies can integrate DES awareness

Luckily, there are prevention methods. Raising awareness and prevention of DES can be done by:

• Promoting the "20-20-20 Rule": This simple yet powerful rule is a cornerstone of DES prevention. Every 20 minutes, employees should look at something 20 feet away for at least 20 seconds. This helps relax the focusing muscles of the eyes and reduces dryness. Companies can implement gentle reminders through desktop pop-ups or shared calendar events.
• Self-Assessment Checklists: Provide employees with simple checklists to evaluate their own workstation ergonomics (screen distance, lighting, chair height).
• Invest in Eye-Friendly Tech: Encourage the use of anti-glare screen filters, adjustable monitor arms, and high-resolution displays. Offer or subsidize computer glasses designed to filter blue light and enhance contrast.
• Optimal Lighting: Educate employees on the importance of ambient lighting that minimizes glare on screens and avoids harsh overhead lights.
• Encouraging Regular Eye Exams: Promote the value of annual eye exams. Many DES symptoms can mimic or worsen underlying vision problems that only a professional can diagnose. Emphasize that these exams are not just for vision correction but for overall eye health monitoring.

Keys to remember: By proactively addressing Digital Eye Strain, companies don't just reduce discomfort; they invest in a more focused, productive, and healthier workforce.

Background

The FY 2026 OSHA budget bill was signed into law on February 3, 2026. It covers funding through September 30, 2026. As has been the case for decades, lawmakers slipped in a rider with OSHA enforcement exemptions and limitations. One of those is for employers with no more than 10 employees in a “low-hazard industry.”

OSHA is not allowed to use federal dollars to “administer or enforce” any regulation under the Occupational Safety and Health Act (OSH Act) for qualifying employers, except for assistance, training, studies, and actions related to:

• Imminent dangers,
• Health hazards,
• Fatalities,
• Incidents with two or more hospitalizations, and
• Worker complaints.

Unless there’s a complaint, imminent danger, fatality, or two or more hospitalizations, it means OSHA cannot conduct programmed inspections for “safety hazards” at qualifying sites. Programmed inspections are sometimes called targeted or planned inspections. They include national, regional, and local emphasis programs; inspection scheduling for construction; the site-specific targeting program; and the severe violator enforcement program.

Rider applicability criteria

According to CPL 02-00-170, the small employer/low-hazard industry rider applies only if both of the following criteria are met:

• An employer has 10 or fewer employees currently and has not had more than 10 employees at any time during the previous 12 months; and
• The DART rate for the employer's industry is currently below the national DART average, per the most recently published labor statistics.

OSHA sources say the number of employees is not for a company but for a single location. Even large companies with 10 or fewer employees at a site will discover that the location comes under this loophole if its sector is exempt.

Qualified employer locations must still comply with applicable OSHA regulations, however. For example, under 29 CFR 1904.39(a)(3), employers covered by the OSH Act must report to OSHA any work-related incident that results in a/an:

• Fatality,
• In-patient hospitalization,
• Amputation, or
• Loss of an eye.

Once one of these reports is received, the agency determines if an “unprogrammed” inspection or investigation will be conducted.

Low-hazard industries and OSHA EEL webpage

The new table itemizes 489 North American Industry Classification System (NAICS) codes for industries that qualify for limited OSHA enforcement activities opened on and after January 22, 2026. The 489 figure is a slight increase from 485 industry codes identified back in November 2024.

The industries on the latest list had a DART rate below the national average of 1.4 per 100 full-time equivalent workers in 2024. That average comes from 2024 incidence rate data recently published by the Bureau of Labor Statistics.

Because injury and illness rates shift annually, OSHA’s lineup of low-hazard industries changes with them. In fact, OSHA made more than 100 additions and over 100 deletions with the February 2nd memo. Your industry may or may not be shown in any given year.

If your industry tends to jump on and off the listing, you may wish to monitor the OSHA Enforcement Exemptions and Limitations Under the Appropriations Act webpage — call it the OSHA EEL webpage for short. It provides links to the current and historical memos, as well as the CPL.

OSHA inspector instructions

Complete instructions for OSHA officers on how to handle the rider are found in CPL 02-00-170. Yet, a few practical instructions are shared in the memo, and these relate to:

• Construction inspections and exempted and non-exempted contractors,
• Not proposing citations for an inspection that was conducted when the employer is later found to be immune from that inspection, and
• Rescinding erroneously issued citations.

Note that the CPL features not only inspector procedures and clarifications but also 18 frequently asked questions and a link to the OSHA EEL webpage.

Key to remember

OSHA posted its FY 2026 low-hazard industries table based on the average DART rate for 2024. It helps agency inspectors sort out which establishments with a workforce of 10 or fewer employees qualify for certain enforcement exemptions and limitations.

What prompted the changes?

OSHA revised and reissued the NEP based on enforcement history and combustible dust incident reports. The agency conducted more than 2,500 combustible dust inspections in fiscal years 2013 to 2017 and found 3,389 combustible dust violations during this period. The top five industries with combustible dust hazards were:

• Farm suppliers
• Institutional furniture manufacturers
• Metal window and door manufacturers
• Sheet metal work manufacturers
• Reupholstery and furniture repairing operations

The highest numbers of combustible dust-related fatalities and catastrophes during this period were:

• Animal food manufacturing
• Sawmills
• Wood manufacturing (e.g., cut-stock, re-sawing and planing)
• Agricultural processing facilities (e.g., grain and field beans)

Changes to targeted industries

Several industries with a higher likelihood of having combustible dust hazards (e.g., more than five inspections and greater than 50 percent of the inspections with combustible dust hazards) or experienced combustible dust-related fatalities/catastrophes were added to the NEP:

• 311812 – Commercial Bakeries
• 325910 – Printing Ink Manufacturing
• 321912 – Cut Stock, Resawing Lumber, and Planning
• 316110 – Leather and Hide Tanning and Finishing
• 321214 – Truss Manufacturing
• 424510 – Grain and Field Bean Merchant Wholesalers

Industries with a lower likelihood of having combustible dust hazards and a lower number of potential workers exposed were removed from the NEP:

• 22112 – Fossil Fuel Electric Power Generation
• 311821 – Cookie and Cracker Manufacturing
• 325810 – Pharmaceutical Preparation Manufacturing
• 326121 – Unlaminated Plastic Profile Shape Manufacturing
• 335932 – Noncurrent Carrying Wiring Device Manufacturing
• 337920 – Blind and Shade Manufacturing

What’s required?

Combustible dusts are fine particles that present an explosion hazard when suspended in air under certain conditions. Almost any material that will burn in air in a solid form has the ability to catch fire and explode as a dust. Under certain conditions, even materials that don’t burn when in larger form, such as aluminum or iron, can explode or catch fire as a dust. The force from such an explosion can cause employee deaths, injuries, and destruction of entire buildings. Such incidents have killed scores of employees and injured hundreds over the past few decades.

Although OSHA doesn’t have a standard specific to combustible dust, several general industry regulations, such as Ventilation (1910.94), Sawmills (1910.265), and Grain handling facilities (1910.272), address certain aspects of combustible dust hazards. Regardless of industry:

• Train employees to recognize and prevent the hazards associated with combustible dust.
• Follow the specific OSHA requirements for your operations and industry.
• List possible sources of dust in the workplace and areas of accumulation. Check safety data sheets (SDSs) for the materials used in the facility that might become combustible dust under normal operations.
• Ensure working surfaces are designed to minimize the buildup of dusts.
• Follow good housekeeping programs to prevent the buildup of dust, emphasizing regular cleaning of floors and horizontal surfaces (e.g., pipes, hoods, ledges, beams).
• Use grounding, bonding, and other methods to dissipate any electrostatic charge that could be generated while dust moves through ductwork.
• Ensure electrically-powered devices (e.g., vacuum cleaners) and equipment are approved for the hazard classification for Class II locations.
• Select and use powered industrial trucks (e.g., forklifts) that are approved for combustible dust locations.
• Implement and comply with the company’s Hot Work Permit program.
• Smoke only in designated areas.
• Install and maintain dust-containment systems, if necessary, and ensure they don’t allow fugitive dusts to accumulate in the work area.
• Locate dust collection systems outside or in specially designed areas.
• Install separator devices to remove foreign materials capable of igniting combustible dusts.
• Direct explosion venting away from employees.
• Develop a facility emergency action plan and train employees on it.
• Properly mark and maintain emergency exit routes.

Be prepared

During an inspection, compliance officers will make observations and verifications concerning the above list and will review the following to determine whether fire, flash fire, deflagration, or explosion hazards exist:

• Plant history of fires and explosions
• Safety data sheets (SDSs)
• Electrical area classification drawings/documents
• Dust Hazard Analysis (DHA) conducted by the employer or independent evaluator

Key to remember

Employers should investigate any activity that creates dust to determine if there’s a risk of combustion. By following the recommendations above, you can keep workers and your facility safe and be prepared in the event of an inspection.

What is “chip guarding”?

“Effective chip guarding” means any method or equipment which will prevent a chip or particle (of whatever size) from being blown into the eyes or unbroken skin of the operator or other workers.

Effective chip guarding may be separate from the air nozzle as in the case where screens or barriers are used. The use of protective cone air nozzles are acceptable in general for protection of the operator, but barriers, baffles or screens may be required to protect other workers if they are exposed to flying chips or particles.

What about the psi requirement?

The regulation requires the psi at the nozzle to be less than 30 when using compressed air for cleaning.

However, OSHA has said in interpretive guidance that the use of compressed air for cleaning purposes at pressures at or greater than 30 psi is permissible if the outlet or source is fitted with a relief device or air ports that drop the pressure to less than 30 psi if the flow is dead-ended.

What about cleaning clothing/bodies?

While the regulation does not specifically address the issue, in a letter of interpretation OSHA said that employers should not allow employees to use compressed air for cleaning themselves or their clothing in general industry situations. The eyes and other body parts, such as the respiratory system, may be damaged as the result of inadequate personal protective equipment, lack of chip guards, and/or uncontrolled release of compressed air.

The dangers

There are numerous dangers of improperly using compressed air:

• Embolism: If compressed air enters the bloodstream through a body opening or skin break, it can create an embolism (air bubble) that can be life threatening.
• Eye damage: Particles that are being blown can “blow back” and strike the eyes. The air itself can also cause injury if it is pointed toward the eyes.
• Hearing loss: Some compressed air equipment can be loud enough to damage hearing. Always wear proper PPE.
• Combustible dust: If compressed air is used to blow certain dusts, it can create a suspension in the air that could ignite if there is an ignition source.
• Respiratory: Particles or air can enter the respiratory system, posing deadly hazards.
• Whips: If not properly secured, hoses can whip and cause severe injury.

Workers must be trained that even extremely low pressures, such as 5 or 10 psi, can still cause severe damage if pointed toward the body, particularly the mouth, eyes, ears, or open areas in the skin.

Employers should train employees on the dangers of compressed air, and ensure the equipment is equipped with the necessary safety features and is properly maintained.

Supervisors should watch for improper use, particularly horseplay, and initiate corrective action. In addition, for many applications, a broom or shop vacuum may be just as effective at cleaning, and much safer. Compressed air may seem harmless, but if strict safeguards and practices are not utilized it can be deadly.

OSHA’s announcement on helmets vs. hard hats

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

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

The two main benefits of Type II safety helmets

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

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

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

Understanding the different types of head protection

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

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

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

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

Choosing the right head protection for your employees

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

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

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

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

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

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

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