The FMLA and treatment outside the U.S.

What’s required?

Facilities submit annual compliance certifications to the Title V permitting authority, which is usually a state or local regulatory agency (40 CFR 70.6). An EPA Regional Office serves as the permitting authority (71.6) for federally issued permits.

Title V tip: Check the state or local regulations for Title V compliance certification rules. They may require more frequent submissions and additional information.

At a minimum, the annual compliance certification covers two major areas for every permit term or condition:

• The compliance methods, and
• The compliance status.

Let’s take a closer look at each element.

How do I submit a compliance certification?

Your facility’s Title V permit provides instructions for how to submit the annual compliance certification, including the required forms and methods (via mail or electronic submission). You can also confirm requirements with your permitting authority. Generally, federally permitted facilities use the Annual Compliance Certification (EPA Form 5900-04).

Title V tip: Electronic submissions may be an option through the Compliance and Emissions Data Reporting Interface (CEDRI) on EPA’s Central Data Exchange. Check with your permitting authority to determine whether you may submit the annual compliance certification electronically via CEDRI.

Annual compliance certification is vital to maintaining your Title V permit. Keep in mind: comply, certify, and repeat.

Key to remember: Facilities with a Title V operating permit must certify compliance with the requirements at least annually.

Company learns multimillion-dollar lesson

EPA and the U.S. Department of Justice reached a settlement agreement with a North Carolina automotive parts company and its owner for violating the Clean Air Act (CAA) requirements for mobile sources by:

• Manufacturing, selling, and installing more than 250,000 defeat devices on diesel pickup trucks; and
• Installing aftermarket defeat devices on hundreds of diesel pickup trucks.

The company and its owner face civil and criminal consequences and will pay a total of $10 million in fees and penalties.

Civil enforcement

A July 2024 consent decree (pending court approval) requires both parties to pay a combined $7 million penalty. It also bans the company and owner from:

• Manufacturing, selling, offering to sell, and installing defeat devices;
• Transferring intellectual property to help others make or sell defeat devices; and
• Investing in or profiting from other businesses’ defeat devices.

Criminal enforcement

Both the company and owner pleaded guilty to conspiring to violate the CAA. The federal court ordered the company to pay a $2.4 million fine and complete three years of organizational probation. It also ordered the owner to pay a $600,000 fine and serve three years of probation.

What are defeat devices?

A defeat device is any component that “bypasses, impairs, defeats, or disables the control of emissions of any regulated pollutant” (40 CFR 1068.101(b)(2)). Put simply, it’s an illegal device that removes or disables a vehicle’s emissions controls.

There are generally two types of defeat devices: hardware (such as modified automotive parts) and software (like delete tuners). In fact, many of the devices consist of both types that work in tandem. Federal law (and EPA regulations at 1068.101(b)) bans defeat devices used to swerve around vehicle emissions controls. Section 203(a)(3) of the CAA prohibits anyone from:

• Tampering with an EPA-certified vehicle’s emissions control devices to remove them or make them inoperative before selling the vehicle,
• Knowingly tampering with an EPA-certified vehicle’s emissions control devices to remove them or make them inoperative after the vehicle is sold and delivered to the purchaser, and
• Knowingly manufacturing, selling, offering to sell, or installing defeat devices that bypass, defeat, or render inoperative any emission control device.

Common emission control devices include:

• Onboard diagnostic systems,
• Catalytic converters,
• Electronic control units,
• Fuel systems, and
• Diesel particulate filters.

Who do the regulations affect?

The prohibition on defeat devices applies to everyone, from the original equipment manufacturer that installs the vehicle emissions controls to the vehicle owner and operators.

The 1990 CAA Amendments expanded the tampering provision in Section 203(a)(3) to include “any person.” Further, EPA’s regulations at 1068.101(b) “apply to everyone,” such as:

• Vehicle manufacturers;
• Vehicle dealers;
• Automobile repair shops;
• Commercial mechanics;
• Fleet operators;
• Aftermarket automotive part manufacturers, sellers, and installers;
• Owners; and
• Operators.

Compliance tips

Consider these helpful suggestions for maintaining compliance:

• Check and comply with your state and local regulations, as they may be more stringent than federal requirements and impose additional rules. For example, states may require certified technicians to conduct automotive maintenance services on emission controls. States may also prohibit operating, selling, and/or registering tampered vehicles.
• Purchase aftermarket automotive parts only from reputable sources. Obtain proof that the aftermarket parts won’t increase emissions.
• Self-disclose any potential violations you find to EPA and/or the state environmental agency. EPA and many states will lower or waive civil penalties for self-reporting violations.

The case against this automotive parts company and owner serves as a multimillion-dollar reminder about making, selling, installing, or using defeat devices — steer clear!

Key to remember: Steer clear of defeat devices that try to detour around EPA’s vehicle emissions controls to ensure a smooth regulatory road.

To-do before October 1

Get ready for renewal by taking the following steps now:

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

Beginning October 1

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

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

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

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

To renew your registration:

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

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

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

Are injuries from workplace parking lots recordable?

Parking lots are company property and, therefore, susceptible to workplace injury reporting. Work-related exposures include most of the employees’ activities on the employers’ premises as well as situations off premises where employees are engaged in job tasks or are there as a condition of employment. For recordkeeping purposes, company parking lots are part of the employer’s premises and, thus, part of the establishment.

Under 29 CFR 1904.5(b)(2)(v), an injury or illness is not work-related if it’s solely the result of an employee doing personal tasks (unrelated to their employment) at the establishment outside of the employee’s assigned working hours. For this exception to apply, an incident must meet both stated conditions: the incident must (1) be solely the result of the employee doing personal tasks (unrelated to their employment) and (2) occur outside of the employee’s assigned working hours.

Keys to remember

Even a collision at 5 miles per hour can be deadly, so employers must do what they can to prevent parking lot collisions at their workplace. Parking lot safety procedures not only help prevent OSHA recordables, but they can also easily be used off the job as well.

Registration and fuel taxes

You'll need trip and fuel permits if the truck is a qualifying vehicle under those programs (depending on the type of vehicle, but usually both are required). Sometimes, along with a registration trip permit, the state in which the vehicle was purchased will issue a temporary registration or temporary registration permit so the vehicle has a “plate” of sorts. Then, state-by-state trip and fuel permits can be purchased for the trip home.

Operating authority

Trip permits for interstate for-hire operating authority are not available from states. Carriers must have federal operating authority before conducting any for-hire transportation. Jurisdictions requiring authority registration for interstate exempt and/or private carriers typically do not have temporary permits available for carriers that are not permanently registered.

Unified Carrier Registration

All interstate and international carriers (private, exempt, for-hire) must be registered under the Unified Carrier Registration (UCR) Agreement. UCR trip permits are not available.

Mileage taxes

A few U.S. jurisdictions (including Kentucky, New York, New Mexico, and Oregon) assess mileage or highway use taxes in addition to fuel taxes. Trip permits are available for carriers not permanently registered.

Heavy vehicle use tax

The Heavy Vehicle Use Tax (HVUT) applies to highway motor vehicles with a taxable gross weight of 55,000 pounds or more and includes trucks, tractors, and buses. For these vehicles, you must file Form 2290 and Schedule 1 if a taxable highway motor vehicle is registered, or required to be registered, in your name under any state or District of Columbia, Canadian, or Mexican law at the time of its first use.

Key to remember

Enforcement personnel might congratulate you on the purchase of your new truck, but they’ll also want to see that the truck and driver meet all compliance obligations.

Checking your weight and dimensions

There are a few ways to estimate your vehicle’s weight. You can look up your vehicle by registration number or VIN or you can look in your vehicle’s manual or even call the manufacturer. The best way to get your vehicle’s weight is to weigh your vehicle using portable scales under each axle or by driving onto a scale. The rules, laws, and regulations for oversize in Canada are extensive and informative and are designed to ensure the safety of drivers, other road users, and the infrastructure.

The maximum legal limits allowed for height, width, and length are:

• Maximum width – 2.6 metres (vehicle and load)
• Maximum height – 4.15 metres (vehicle and load)
• Maximum length – 12.5 metres (single vehicle including load)
• Maximum length - 14.65 metres (semi-trailer including load)
• Maximum length (combination) - 23metres (combination vehicle and loads)

If your combination exceeds these dimensions, an oversize permit would be required.

Are you eligible for an overweight permit?

In Canada, whether or not you need an overweight permit for your trucks depends on the province you will be crossing and on many other different variables like axle spreads, specific axle weights, tire size, etc. This is why it is important to include as many details as possible when you fill out the application.

You are eligible to apply for a permit if your vehicle or load cannot be reduced because it:

• Could not be used for its intended purpose or function; and/or
• Would require more than eight work hours to dismantle.

You will not be eligible for a permit if your load is :

• Vehicle, load, or combination will be overweight, and your load is made up of more than one item;
• Vehicle or load is over height, over width, or overlength because of the way you have loaded it. For example, items are stacked in a way that creates unnecessary additional height, width, or length.
• Vehicle or load is overlength, your load is made up of more than one item, and the overhang of your load to the rear exceeds 4.65 metres from the centre of the rear-most axle

How do I get an oversize/overweight permit?

The process of getting a permit for an overweight truck may vary depending on the jurisdiction and the type of permit you need. You need to apply to the transportation authority of the province or territory where you plan to travel. The requirements, fees and conditions may vary depending on the type and size of your load and vehicle. You can find more information and online application forms on the websites of each province or territory.

The federal government does not issue permits for oversized or overweight vehicles.

How long is your permit valid?

Permits are good for a single trip meaning that if you cross from one province into the other and come back to your home province that permit is not valid anymore. For example, if you are based in Ontario, you deliver goods in Quebec and come back to Ontario, the permit you were issued is no longer valid. On the other hand, permits do have a validity period to complete your single trip and it can range from 48 hours to 10 days depending on which province the permit was issued in. Always read your permit to ensure you’re complying with its conditions.

Key to remember: To avoid overweight issues, plan your route to avoid roads or bridges that have weight restrictions, make sure your load is evenly distributed, obtain the proper permits, and most importantly follow the safety standards and regulations in your jurisdiction.

Name change not (technically) required on Form I-9

When an employee has a legal name change because of marriage, divorce, or another reason, the U.S. Citizenship and Immigration Services (USCIS) does not require employers to update the Form I-9.

However, the agency does recommend that the employer note the name change in Section 3 of the form. The agency suggests that employers maintain correct information on the form.

Employers need to be sure of an employee’s identity

Employers shouldn’t simply take an employee’s word for it when it comes to a name change. The agency recommends that employers ask for proof.

Once again, the agency doesn’t require this, but it is certainly a good idea. The agency recommends that employers take steps to be reasonably assured of an employee’s identity, and this may involve asking the employee to provide documentation of the legal name change.

Keeping documentation of name change a best practice

Information about a name change is kept with the employee’s I-9.

That way if an employer’s I-9 forms are audited by a government agency, and the employee’s form is inspected, having this documentation shows the actions that were taken to verify identity.

Accepting documents with different names

An employer may also encounter name issues when an employee presents the documents needed to initially complete the Form I-9.

If an employee presents two documents with different last names, and one name matches the name the employee entered in Section 1, the employer may accept the documents.

The USCIS suggests that an employer attach a brief memo to the form that explains the reason for the different names. Any supporting documentation provided by the employee should also be attached.

The employee is not required to provide the documents explaining the name change. However, the employer is allowed to ask for other acceptable documents if there is something suspicious about the document with a different name that makes the employer question whether it is genuine.

Key to remember: An employer is not required to update an employee’s Form I-9 when the employee’s name change, but it is recommended.

The DOL chimes in

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

Employers need to keep some information in mind:

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

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

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.

What is an electrolyte?

Pure water will not carry an electric current, but adding sulfuric acid creates an electrolyte solution that allows the electric current to pass. Employees may need to mix concentrated sulfuric acid with distilled (pure) water to make the electrolyte solution.

The chemical reaction of mixing sulfuric acid with water can generate heat, resulting in a violent reaction. Because of this reaction, when mixing an electrolyte solution for forklift batteries, always add acid to the water to avoid the hazard of smoking and splattering.

When transferring acid from a large container, it’s a good idea to use a siphon. It’s much easier to control, reducing the chance for spilling or splashing. Splashed acid will eat holes in cloth and skin, so wearing protective equipment during this task is essential, including gloves, long sleeves, and goggles.

Maintaining battery cells

Normal forklift operations cause water in the battery cells to evaporate. If the fluid level in the cells is low, add distilled water before charging. Never add water immediately after a charge.

When the electrolyte level is low, clean off the top of the battery. Remove the battery’s filter caps and add distilled water to the cells. Be sure that the filter caps are tightened securely after the cells are filled.

If workers are not fully trained and authorized to perform this function, they must not attempt to add fluids of any kind to batteries.

Don’t get tripped up by OSHA’s walking-working surfaces standard

There are many slips, trips, and fall hazards on construction sites. Employers must be proactive to find and fix these workplace hazards BEFORE they become an issue. Exposure to these types of hazards can pose a significant risk of death or serious harm to workers.

Employers can use a fall protection method or system that works best for the work operation. Regular inspections and training will help employers prevent and eliminate walking-working surface hazards.

What is a walking-working surface?

OSHA’s 1926.500(b)(2) says a walking-working surface is a horizontal or vertical surface. For example, it would include floors, roofs, ramps, bridges, runways, formwork, and concrete reinforcing steel but not include ladders, vehicles, or trailers where employees can stand. You must identify and eliminate walking-working surface hazards with proactive measures such as fall protection. Fall protection includes using: covers, designated areas, guardrails, handrails, personal fall protection systems, ladder safety systems, and safety nets.

Employers should perform regular inspections to identify and mitigate slips, trips, and fall hazards.

Things to keep in mind while performing these inspections include:

• Passageways, storerooms, service rooms, and walking-working surfaces must be kept clean, orderly, and sanitary.
• Walking-working surfaces must have a proper load rating to safely support loads applied to it.
• If a corrective action or repair cannot be made immediately, the hazard must be guarded to prevent employees from using the walking-working surface.
• False floors, platforms, and mats must be provided when wet processes are used;
• Hazardous conditions on walking-working surfaces must be corrected or repaired before an employee can use it again.
• Employers must provide safe access and egress to and from walking-working surfaces.
• Protruding objects, loose boards, corrosion, leaks, spills, snow, and ice, are not allowed on walking-working surfaces.
• Only a qualified person can repair structural integrity issues on a walking-working surface.

Use equipment properly

Paragraph 1910.303(b) covers examination, installation, and use of equipment. It includes a kind of a “general duty clause” that states, “Electric equipment shall be free from recognized hazards that are likely to cause death or serious physical harm to employees.”

Since electricity could cause serious harm, OSHA can cite that paragraph for a number of hazards. Citations include things like damaged insulation on wiring or exposed electrical parts of equipment motors. However, that isn’t the most frequently cited paragraph.

Sub-paragraph 1910.303(b)(2) gets cited most often. It states, “Listed or labeled equipment shall be installed and used in accordance with any instructions included in the listing or labeling.” Essentially, this tells employers to follow manufacturer instructions when using electrical equipment. OSHA uses this for violations like improperly using power strips or allowing employees to use outlets that were not correctly installed.

For related information, see our article, Five things to know before letting employees work with electricity.

Another frequently cited issue is failing to maintain access and working space around electrical equipment. Paragraph 1910.303(g)(1) requires sufficient access and space to allow safe operation and maintenance, describes specific distances, prohibits using the working space for storage, and requires guarding when live parts are exposed for inspection or service.

Wiring issues

The other commonly-cited electrical standard is 1910.305, covering wiring methods and more. These violations include issues such as outlets or switches without covers, or improperly using flexible cords (such as extension cords) where permanent wiring should be used.

One of the most-cited paragraphs is 1910.305(b)(1)(ii) which says, “Unused openings in cabinets, boxes, and fittings shall be effectively closed.” For example, if a circuit breaker panel has an unused breaker space, it must be filled with a blank. It cannot be left open, and placing tape over the empty slot is not sufficient.

Another frequently-cited paragraph is (g)(2)(iii), which says: “Flexible cords and cables shall be connected to devices and fittings so that strain relief is provided that will prevent pull from being directly transmitted to joints or terminal screws.” OSHA uses this when saws or other equipment gets power through flexible cables coming from an electrical panel.

The Bureau of Labor Statistics lists more than 2,000 injuries from exposure to electricity each year and around 150 deaths per year. Neither of the above standards specifically requires training workers on electrical safety, but employers should provide training on properly using (and not improperly using) electrical equipment and tools. For related information, see our article, What is the difference between qualified and unqualified electrical workers?

Key to remember: Electrical hazards from exposed electrical lines and improperly using equipment could be mitigated by training employees.