To avoid a retaliation claim, take a step back

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.

How would they help?

The following is a summary of how the proposed changes, if finalized, would ease burdens on commercial drivers and motor carriers:

ELD manuals: Drivers would no longer need to carry a user manual (either paper or electronic) for their electronic logging device (ELD). This violation alone was cited over 3,660 times last year. Other ELD-related documents would still be required, however, such as malfunction and transfer instructions and blank logs.

Railroad crossings: Bus drivers and those hauling certain hazardous materials would no longer need to stop before crossing a railroad track equipped with an active warning device (i.e., lights or gates), as long as the device is not activated.

Accident recording/reporting: Motor carriers would no longer need to record information about accidents where the only medical treatment that occurred involved imaging (such as x-rays or CT scans) or a prescription but no treatment for diagnosed injuries or other medical interventions directly related to the accident.

Inspections

• Motor carriers would only need to complete and return roadside inspection reports to the issuing state agency if that agency requests them (though the forms must still be retained for 12 months). Currently, 49 CFR 396.9 requires that all such reports be returned within 15 days.
• Though already allowed under 390.32, the rules would explicitly allow drivers and motor carriers to use electronic drivers’ vehicle inspection reports (DVIRs).

CDLs

• Commercial driver’s license (CDL) holders would no longer need to self-report motor vehicle violations to their state licensing agency, as currently required under 383.31.
• Dual-status military technicians, regardless of whether they’re members of either the Reserves or the National Guard, would qualify for the military exemption from needing a CDL, which also means being exempt from entry-level driver training and drug/alcohol testing.

Parts and accessories

• Drivers would no longer be required to carry spare fuses. The FMCSA says today’s vehicles don’t commonly suffer from blown fuses.
• Motor carriers would no longer need to ensure that their vehicles’ rear-impact guards have a permanent certification marking from the manufacturer.
• Tractors would no longer need a working rear license-plate lamp while pulling a trailer.
• It would 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.
• Drivers and motor carriers would no longer need to worry about being cited if their tire sidewalls are not marked with a maximum load rating. It’s up to tire manufacturers to determine if and when such markings are required.
• Drivers would be allowed to use small gravity- or siphon-fed auxiliary fuel pumps mounted on the trailer, as long as their tank capacity is less than 5 gallons and they’re not used for operating the vehicle or while the vehicle is moving. This would be a new exception to the current prohibition in 393.65(d).
• It would no longer be a violation to operate portable conveyors used in the aggregate industry without having brakes acting on all wheels, as long as the conveyor was manufactured before 2010 and the towing vehicle is large enough.

Other changes

The FMCSA issued a few other final or proposed changes that will have limited impact:

• Liquid-burning flares will no longer be an option. Drivers will need to use solid-fuel flares or reflective triangles to warn other motorists of a stopped vehicle.
• The agency plans to remove the requirement that motor carriers retrofit pre-1994 trailers with reflective tape or reflectors, saying the requirement is no longer necessary given the passage of time.
• The FMCSA intends to remove an obsolete grandfathering provision related to an old vision waiver study program.
• The agency will remove all references to “water carriers” in its regulations, since the FMCSA does not regulate such carriers. The agency says the term was carried over from when its predecessor agencies regulated water carriers.
• The regulations no longer say that motor carriers can be fined for violating Part 40 (the DOT drug/alcohol testing rules) since the FMCSA only has authority to issue fines for its own rules under Part 382.
• Some old routing regulations in Part 356 have been eliminated. The FMCSA says it’s not authorized to impose routing limitations when granting operating authority to U.S.-domiciled carriers, making the regulations both “unlawful and obsolete.”

Take action

Though you can’t take advantage of the changes until they’re finalized (probably later this year), you can help sway whether the changes actually take place. You can go online to submit comments about any of the FMCSA’s active proposals, at www.regulations.gov. Just look for the latest dockets from the FMCSA.

Key to remember: The FMCSA has issued a wide variety of proposed rule changes that could save time and money for both motor carriers and drivers.

Two-part assessment

The policy advises officers to begin all roadside inspections in English. If it seems the driver may not understand the officer’s initial instructions, the officer is directed to conduct a two-part assessment to evaluate the driver’s compliance with the English language standard.

The first step is a driver interview, though details of the interview process were redacted from the public version of the policy. The policy says drivers should not use tools to facilitate communication during the interview, such as interpreters or smart-phone applications.

The policy directs officers to cite drivers for a violation if they cannot pass the interview portion of the assessment.

Step two in the assessment is evaluating whether the driver can recognize common highway traffic signs. The policy contains images of signs officers can use for this part of the test, but those too are redacted from the public version of the policy.

‘Out of service’ as of June 25

If a driver fails the test, the policy says the officer should:

1. Cite the driver for a violation of 391.11(b)(2);
2. Document evidence to support the violation, including the driver’s responses or lack thereof;
3. Beginning June 25, place the driver out of service (June 25 is when the violation will be added to the North American Standard Out-of-Service Criteria, as previously announced by the Commercial Vehicle Safety Alliance); and
4. When warranted, initiate an action to disqualify the driver from operating commercial motor vehicles in interstate commerce.

Drivers who are placed out of service won’t be allowed to drive until they can meet the English language requirements.

The policy applies to all federal enforcement personnel who perform inspections on drivers engaged in interstate commerce. Its effect on state-level enforcement remains unclear for now.

According to the policy, drivers in a commercial zone along the U.S.-Mexico border may be cited but should not be placed out of service.

The regulation

The Federal Motor Carrier Safety Regulations state that commercial drivers must be able to “read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”

The new policy replaces a 2016 policy that ordered inspectors not to place drivers out of service for violating the language requirement.

The basics of logging exemptions

To be able to use this logging exemption in 395.1(e)(1), the driver must:

• Stay within 150 air-miles of the work reporting location for the day (draw a 150 air-mile radius circle around the work reporting location for the day — the driver must stay within this circle),
• Be back to — and released from — the work reporting location for his/her 8- or 10-hour break within 14 hours, and
• Include the starting and ending times for the day and the total hours on duty on the time record for the day.

The company must retain the time record and have it available for inspection for six months.

What if the driver goes too far or works too many hours?

If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.

If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).

30-minute break exemption

When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).

If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.

Common myths

Here are some of the common myths and misunderstandings about the 150 air-mile exemption:

• The driver must have the time records in the vehicle. Myth. The driver simply needs to explain to an officer during a roadside inspection that he/she does not have logs due to operating under the 150 air-mile exemption and that the required time records are back at the carrier’s office (just telling the officer, “I don’t have any logs” will lead to a violation, so the driver needs to know to provide the full explanation).
• The driver must log the previous seven days if he/she had been using this exemption and suddenly can’t. Myth. If the driver cannot use the exemption on one particular day, that is the only day the driver must use a regular log (either paper or electronic).
• Passenger-carrying drivers and drivers hauling hazardous materials cannot use this exemption. Myth. There are no restrictions on the use of this exemption, so any commercial driver can use it.
• A driver that crosses state lines cannot use this exemption. Myth. As this exemption appears in the Federal Motor Carrier Administration (FMCSA) regulations, it can be used by interstate drivers.
• Only drivers that operate out of a “company terminal” can use the 150 air-mile exemption. Myth. As long as the driver makes it back to the work reporting location for the day within the appropriate number of hours, the driver can use the exemption.
• Drivers that move from one jobsite to another every few weeks cannot use this exemption. Myth. If a driver that normally uses this exemption switches work reporting locations, the day the driver switches work reporting locations is the only day the driver cannot use the exemption.
• Drivers covered by this exemption are also exempt from the driver qualification (licensing and medical cards), driving, and vehicle inspection requirements. Myth. The only rules the driver is exempt from are the logging requirement in 395.8 and the 30-minute break requirement in 395.3.
• The driver cannot drive more than 150 miles for the day. Myth. The driver can drive as many miles as he/she wants to or needs to, as long as the driver stays within the 150 air-mile radius circle and gets back to the work reporting location within the appropriate number of hours.
• If a 150 air-mile driver gets into a vehicle with an ELD, the driver must use it. Myth. The carrier can have the driver log in and have the driver entered into the system as an “exempt driver,” or the carrier can request that the driver not log into the device and then attach a comment to the unassigned driving time generated by the driver’s movements. The comment would need to explain that the driver using the vehicle was a 150 air-mile driver who submitted a time record. It is up to the carrier to decide which option to use. If stopped for a roadside inspection, the driver will need to be able to explain to the inspector that he/she is an exempt driver using the 150 air-mile exemption, so using the electronic log is not required.

What’s different with the ‘150 air-mile non-CDL property-carrying drivers’

The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.

If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.

If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.

Managing the use

If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).

If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.

Verifying compliance is important

During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!

Preparation

Listen then repeat

Difficult questions

Jumping ahead

Ordinance aims to help the unhoused

The intent of “ban the address” is to discourage discrimination against otherwise qualified job candidates who are unhoused (i.e., homeless). A Spokane city council member who sponsored the ordinance told reporters that its passage “represents a major step forward, providing hope, dignity, and opportunity to workers who have faced challenges due to not having a permanent residence.”

The ban-the-address ordinance doesn’t prohibit employers from giving applicants the opportunity to provide a mailing address or other means of contacting them on an application or as part of the application process.

What the ordinance does prohibit is requiring an applicant to provide an address or residence history until after granting a provisional employment offer. Employers should also refrain from asking on a job application or in an interview about the applicant’s housing status. For example, interviewers shouldn't ask “why do you have a P.O. box?” or “why are you using this address?”

Employers that violate the ordinance—by asking questions about an applicant’s address or housing status before a conditional job offer—can face civil fines. The initial fine for a violation is up to $261.

Exceptions to the ordinance

The ordinance makes an exception for cases in which an individual’s housing status has “bona fide and legitimate relation” to the primary duties of the job. The exception also applies if a federal, state, or local law requires address information for a specific job (e.g., security clearance, licensing, or residency-based eligibility).

The Spokane ordinance also says that employers shall not “reject or disqualify an applicant solely because the individual does not have a fixed or regular residence, or because the individual is homeless or unhoused, or because the individual lives on the street, in a shelter, or in a temporary residence.”

Something for all employers to consider

While only employers in the city of Spokane are directly affected by this ordinance, employers anywhere struggling to fill positions might want to consider placing less emphasis on where job applicants live. Asking for an applicant’s address can unintentionally reveal socioeconomic status, housing insecurity, or even race and ethnicity (due to residential segregation). Avoiding questions about address may reduce unconscious bias and level the playing field for all applicants.

Key to remember: Spokane, Washington is the first city in the nation to have a ban-the-address ordinance. The purpose of this ordinance is to prohibit employers from discriminating against job applicants based on the address they provide during the application process. The scenario the ordinance aims to eliminate is one where an otherwise qualified job candidate is discriminated against because they find themselves homeless due to circumstances unrelated to their ability to do the job. 

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 would you do?

So, if Joe Employee were to ask to bring in his emotional support squirrel, what do you do?

Treat the request as you would any accommodation request. You would do the same if Joe asked to bring in a service dog. Look at the particulars of the situation, including the employee’s job, the work environment, and so forth. Talk to the employee. This is all part of the ADA’s interactive process.

Assuming it’s possible to modify the no-animal policy, you may (but are not required to) ask for medical documentation if the disability and need for accommodation are not obvious or already verified. You have to consider only those accommodations that are needed because of a disability. Documentation might include a detailed description of how the animal would help the employee in performing job tasks and how the animal is trained to behave in the workplace.

Once the need for accommodation is established, the next step is to talk with the employee about whether the animal is trained to be in a work environment and if it will be under the employee’s control at all times. You do not have to provide any accommodation that poses an undue hardship. One factor in determining undue hardship is whether the accommodation will be unduly disruptive to other employees or to the ability to conduct business.

Finally, possibly the best way to determine whether to permit the employee to bring an animal to work is to allow it on a trial basis and see if it works. You might want to make a written agreement with the employee that there will be a trial period, how long it will last, and what factors might end the trial period early. If, for example, the animal shows any sign of aggression or if the employee cannot keep the animal quiet or under control, you will immediately end the trial period and deny the request.

If you do not have a no-animal policy and allow other employees to bring in animals, then you should allow employees with disabilities to bring in animals without going through the accommodation process.

#1 Start here

First, OSHA requires that all operators must be trained prior to being allowed to operate forklifts. And the same thing goes for pallet trucks, order pickers, and stand-up units…. Any powered type of material handling equipment requires training.

But what does training entail? Well, the OSHA regulations are very specific. All operators must receive a combination of training. Training must consist of formal training, which is a lecture, discussion, interactive computer learning, video tape, written material, and so on.

They must also receive practical training, which means demonstrations performed by the trainer and practical exercises performed by the trainee.

And the third component is that operators must receive a performance evaluation. So, they must operate the equipment and be observed and evaluated before being considered trained per the OSHA standard.

Usually, you’ll introduce the concepts during the classroom portion of training, the more informational aspects, such as the OSHA requirements. Then you’ll use the practical part of training to familiarize trainees with controls, talk about load handling, and so on. With the practical part, it’s usually best to ramp up the training, meaning start with simple skills and then build on those.

#2 Train on these topics

Aside from requirements for how to do the training, OSHA gives us a detailed list of topics to cover during the training.

The main categories are truck-related and workplace-related topics. And remember that OSHA does require you to include information on OSHA’s forklift standard as part of the training program. This requirement can be easy to overlook, but a good way to approach it is in the classroom portion of the program.

Keep in mind that if a topic doesn’t apply to your trucks or workplace, you don’t have to train on it. For example, if you don’t have any ramps or hazardous (classified) locations in your facility, your forklift operators don’t need training on these topics.

Truck-related topics include the following:

• Operation instruction, warnings
• Differences between forklift and automobile
• Controls, instrumentation
• Engine, motor operation
• Steering
• Visibility, restrictions
• Fork, attachment operation
• Capacity
• Stability
• Inspection, maintenance
• Refueling, recharging
• Operating limitations
• Operator’s manual instructions, precautions

Workplace-related topics are examples like these:

• Surfaces
• Load composition
• Load handling
• Pedestrians
• Narrow, restricted areas
• Hazardous (classified) locations
• Ramps
• Poor ventilation
• Other hazards

#3 Determine success

The trainees must successfully complete the formal and practical instruction, but how you determine success is up to you. For the classroom portion, you could give a written or oral test or otherwise evaluate the trainees’ knowledge. For the practical training, the trainee must be able to safely perform all the operations used on the job.

#4 End here

An evaluation of the operator’s performance in the workplace must be conducted at the time of initial training. And an evaluation is required to determine the effectiveness of any refresher training.

Also, you must conduct an evaluation at least every three years. This means that at least once every three years every operator must be observed while they operate in the workplace under actual workplace conditions. During the evaluation, the operator must also be able to answer pertinent questions to demonstrate they have the knowledge to operate the forklift safely.

A key point to note here, this evaluation must be more than just a written or verbal test. The employer must observe the operator in action performing all typical tasks related to running the forklift. And, going back to where we started, the evaluation must be conducted by someone who has the knowledge, training, and experience to evaluate the truck operator’s competence.

Document the evaluation — this means placing a record in your training file that includes the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training or evaluation.

Action item

This may be a good time for you to review your options for training forklift operators to ensure they’re meeting these guidelines. And, it’s always a great idea to have all your training procedures in written format for consistency.

Key to remember

Training forklift operators is an OSHA requirement. Follow this step-by-step guide and you can do it in-house.

Start with a strong paper program

A strong paper program alone doesn’t guarantee a solid safety philosophy, but you won’t find a successful one without it. Written plans, policies, and documentation form the foundation for setting expectations, tracking progress, and defining safety goals.

Key elements to include are:

• A clear mission statement with safety objectives,
• Programs addressing both general and specific safety topics,
• All required regulatory plans,
• Detailed records of training, inspections, and incidents, and
• An organized system for accessing safety documents.

Earn buy-in from people involved

Like any significant organizational change, successfully implementing a safety philosophy depends on securing full support from everyone involved.

Commitment must start at the top—executives need to lead by example to ensure supervisors and employees are fully engaged. If leadership doesn’t prioritize safety, it’s unlikely the rest of the organization will.

Impact management

Managers who understand how safety reduces incidents and downtime are more likely to support it. To gain buy-in from others focused on production or costs, speak their language—show how safety saves money, boosts quality, and improves morale.

Highlight cost savings from fewer claims, link safety to product quality, share success stories, and emphasize the benefits of public and employee relations.

When leadership sees the value, they’re more likely to support safety programs that involve all levels of staff. Engaging employees in safety committees or projects helps embed safety into the culture, especially as those employees grow into leadership roles.

Involve employees

Employees won’t truly buy into safety until they see it in action. If policies aren’t backed by training, daily enforcement, and proper resources, workers will quickly notice—and may stop taking safety seriously.

Before using discipline, ensure that employees have been adequately trained, have access to written procedures, are equipped with the necessary tools, and receive positive reinforcement for exhibiting safe behavior.

If leadership prioritizes production over safety, employees will follow suit. But when managers lead by example and consistently enforce safe practices, employees are more likely to adopt and uphold a strong safety culture.

Support people and processes

Visible management commitment and active employee involvement are key to a strong safety culture. While some safe behaviors happen naturally, effective safety programs require planning, structure, and continuous effort.

Support this culture through actions such as involving employees at all levels, holding safety meetings, forming safety committees, collecting suggestions, and providing training tailored to real job-site needs.

These efforts require management to provide training, time, and funding. A lasting safety philosophy is built through teamwork, consistent support, and shared responsibility across the organization.

Key to Remember

A strong safety philosophy isn’t just written—it’s lived. It starts with clear policies, grows through visible leadership commitment, and thrives when every employee is involved and empowered. When safety becomes part of how work gets done, not just something added on, your company builds a culture that protects people and drives lasting success.

What does OSHA want to hear?

The OSHA Director of Standards and Guidance, Andrew Levinson, tells J. J. Keller® Compliance Network that if you testify, you need to provide one or more of six things to move the needle:

• Your story;
• How the rule impacts you, your workers, or your industry;
• As much detail as possible;
• Suggestions and ideas for solving issues you have with the rule;
• Supporting data, research, or evidence; and/or
• Where and why you agree or disagree with other stakeholders.

Rehashing already submitted comments will not help. That does not add new information to the record. OSHA has combed through the 43,000 public comments on the proposed rule. So, the purpose of the hearing is to allow OSHA to gather information and clarify issues. OSHA wants a clear, accurate, and complete record.

An oral presentation to summarize and clarify (not repeat word-for-word) submitted written comments is encouraged. Witnesses should also engage OSHA with “new” or “deeper” insight. Presentation slides are welcome but must be submitted to OSHA, and OSHA will control the slides at the hearing. Once expanded information gets in the docket, OSHA can use it to transform the rule text as needed.

When is the hearing?

OSHA scheduled the informal public hearing to be held over 12 weekdays:

• June 16 to 18,
• June 20,
• June 23 to 27, and
• June 30 to July 2.

The hearing will begin each day at 9:30 am and end at 4:30 pm, Eastern time. The presiding administrative law judge (ALJ) has the discretion to alter the daily schedule. After the hearing concludes, a transcript will be made available in the docket.

Who can attend?

According to Levinson, anyone may tune in to watch the virtual hearing in real time using the links provided at https://www.osha.gov/heat-exposure/rulemaking.

The period to submit a notice of intention to appear (NOITA) closed on May 2, 2025. If you did not submit your notice by then, you will not be able to testify. On the flip side, those who filed an NOITA by that date are free to testify as scheduled. The latest schedule lists the dates and times assigned to those who will be participating.

The schedule prescribes the amount of time for each witness to testify. It also allots time for OSHA representatives to question the witnesses, as well as additional time for witnesses to cross-examine other witnesses when permitted by the ALJ.

The judge will assure that proceedings are fair, orderly, and timely and follow hearing procedures. Witnesses may not use question periods as a forum for debate. That’s because the hearing is legislative, not adjudicative.

Who can submit comments?

Levinson says a 90-day post-hearing comment and legal brief period will run until September 30, 2025, subject to the discretion of the ALJ. Only those who filed an NOITA by the May 2 deadline (whether testifying or not) will be allowed to provide additional evidence and data relevant to the proceeding and to file final written briefs.

Based on its review of the public comments already submitted, OSHA intends to ask questions of those who testify. Those witnesses may choose to submit their answers during the 90-day post-hearing comment period.

What happens after that?

After the post-hearing comment period, the hearing record will be closed and certified by the ALJ. At that point, OSHA may continue to the next step. That is, the agency may analyze the rulemaking record so that it may develop and publish a final rule. OSHA’s 2025 Spring Agenda, expected in the coming days or weeks, may or may not reveal the timing of a final rule.

Interestingly, the agency’s budget request for fiscal year 2026, posted on May 30, makes no specific mention of issuing a final Heat rule in fiscal years 2025 or 2026. Instead, it indicates that OSHA is currently reviewing regulatory activities as part of a change in administration. Still, the request claims that funding will allow the agency to:

• Move priority rulemakings through the regulatory process;
• Initiate additional rulemakings, including some to update older standards; and
• Advance several deregulatory initiatives.

Current requirements

Currently, federal OSHA uses the General Duty Clause to cite employers for extreme heat hazards. States may issue their own heat illness prevention laws and regulations, making for a patchwork of requirements nationwide.

Key to remember

The OSHA hearing on the Heat proposal will run from June 16 to July 2. You may watch the proceedings virtually. The agency urges testifying witnesses to provide supporting information, not just opinions, to further the rulemaking record.

What are welding fumes?

Welding fumes are a mixture of metallic oxides, silicates, and fluorides generated when metals are heated above their melting point. As the vaporized metal cools, it condenses into a particulate matter that becomes airborne and easily inhaled. The content of the fumes depends on factors such as the type of welding process, base and filler metals used, gases, and any surface coatings present. For example, welding stainless steel can release hexavalent chromium, a well-known carcinogen. Even brief exposure can cause dizziness, respiratory irritation, and nausea. Over time, the health effects become more severe and include chronic bronchitis, neurological disorders, metal fume fever, and an increased risk of lung cancer. Other substances are manganese (linked to neurological damage like Parkinson’s), nickel and cadmium (both related to cancer and respiratory issues), and gases like ozone and nitrogen oxides (severely irritate lung tissue).

Controlling exposure

1. Controlling exposure to welding fumes should follow OSHA’s hierarchy of controls: Elimination or Substitution – using lower emission welding rods, choosing welding methods that produce fewer fumes like TIG, and cleaning surfaces of paints or coatings before welding.
2. Engineering Controls – installing local exhaust ventilation is the gold standard, but you can also use portable fume extractors and welding booths with fume arms when mobility is needed. Adequate ventilation in the welding areas also prevents other workers from being exposed.
3. Administrative controls – rotating tasks to reduce exposure duration, scheduling high fume work when fewer workers are present, and maintaining clean areas to prevent build-up.
4. Personal Protective Equipment (PPE) – Using powered air-purifying respirators for high-risk jobs or wearing a properly rated welding helmet and respirator combo. Workers should be trained to check, wear, and maintain their PPE frequently.

Monitoring and compliance

You cannot manage what you do not know, so monitoring air quality in welding areas is crucial. Air sampling should be conducted regularly to measure exposure levels against OSHA and ACGIH limits, especially when welding stainless steel, galvanized metal, or working in confined spaces. Hiring an industrial hygienist or using real-time monitoring equipment ensures that employers are compliant and actively protecting their workers. In summary, welding is hazardous, but exposure to toxic fumes does not have to be part of the job. Employers can significantly reduce the risk of occupational illnesses by recognizing what is in the air, implementing layered safety controls, and consistently monitoring work environments.

Keys to remember: Welding fumes are a serious short and long term health risk, but they are entirely avoidable with the right controls.

Other safety tips

Tornado safety involves three phases: Preparing in advance, Staying safe during the storm, and Staying safe after the storm.

Employees should prepare a plan and an emergency kit, monitor weather conditions during thunderstorms, and know the best places to shelter wherever they work.

Employers should prepare a business continuity plan for dealing with the aftermath, from cleaning up the site to resuming business operations.

During a tornado warning, employees should remain in a shelter until given an all-clear signal. At a fixed worksite, this may come from an employer announcement. At other locations, employees may need to monitor conditions on their phone or radio.

After the storm, employees may need a way to communicate if they are trapped or injured. They should also watch for hazards such as downed power lines, gas leaks, building damage, or debris.

Key to remember: Tornadoes can happen at any time, but Spring is most active, and employers should prepare to protect workers.