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Misunderstanding what must be reported

One of the most common errors is failing to understand which pollutants must be included. Under the AERR, states and delegated agencies must report annual emissions of criteria air pollutants, including sulfur dioxide, nitrogen oxides, volatile organic compounds, carbon monoxide, lead, particulate matter (PM_2.5 and PM₁₀), and ammonia. These pollutants drive national air quality planning and modeling.

However, many companies overlook hazardous air pollutants (HAPs). While past AERR rules made HAP reporting voluntary, EPA’s proposed revisions would require annual HAP reporting for many sources starting in 2027, significantly expanding reporting duties. Failing to include HAP data or assuming it's still voluntary is a growing compliance risk.

Greenhouse gases (GHGs) are another reporting blind spot. The GHGRP requires large emitters and certain suppliers to report carbon dioxide (CO₂), methane, nitrous oxide, and other GHGs each year. Companies often assume GHG reporting applies only to the largest industries, yet thousands of facilities fall within the rule’s thresholds.

Using incorrect or incomplete emission calculations

Facilities often make calculation errors when converting raw activity data into emissions. Many rely on outdated emission factors or incomplete process data. EPA urges states and regulated entities to use standardized estimation guidance from the Air Emissions Inventory Improvement Program whenever possible. But companies may choose default factors without confirming they apply to the specific process, control efficiency, fuel type, or measurement method.

Under EPA’s proposed AERR revisions, if approved, the agency will require more detailed stack information, such as release point coordinates, exhaust parameters, control device data, and stack test results. Failure to collect these details early can lead to rushed estimates or missing data.

Misreporting source categories

Another major issue is misidentifying emission sources. The AERR distinguishes between point, nonpoint, mobile, and portable sources. Mislabeling a source may cause a facility to submit incomplete inventories or fail to meet the required reporting frequency. For example, point sources often require annual reporting, while nonpoint sources may follow triennial schedules.

Similarly, GHGRP reporting is broken into numerous subparts that define equipment types, fuel suppliers, industrial processes, and CO₂ injection activities. Companies sometimes choose the wrong subpart or assume their process is exempt, leading to incomplete data submissions.

Incorrect use of thresholds and applicability

Both the AERR and GHGRP have emission-based thresholds. Companies frequently make errors when determining:

• Whether they meet the AERR Type A point source criteria;
• Whether they exceed GHGRP reporting thresholds (generally 25,000 metric tons CO₂ equivalent annually); and
• Whether HAP emissions exceed thresholds when HAP reporting is required by a state.

These mistakes usually occur when internal data systems lack consistent tracking or when actual emissions deviate from "potential to emit" estimates used in permitting.

Missing documentation and recordkeeping

EPA requires extensive documentation for emission calculations, monitoring methods, stack tests, control equipment operation, and assumptions. GHGRP rules include detailed monitoring, Quality Assurance/Quality Control (QA/QC), missing data, and record retention requirements. Under proposed AERR rules, companies would also need to submit performance test and evaluation data. Missing or incomplete records often lead to rejected inventories.

Failing to track regulatory updates

Both the AERR and GHGRP are undergoing major revisions. EPA’s proposed AERR updates aim to convert some triennial reporting to annual schedules, add HAP reporting, expand mobile source requirements, and require more detailed facility-level data. Meanwhile, the GHGRP is facing proposed cuts that would eliminate reporting requirements for many source categories while delaying petroleum and natural gas reporting until 2034.

Companies that rely on outdated guidance or assume reporting rules remain static are at risk of major compliance failures.

Improving AEI quality and compliance

Avoiding common errors begins with three fundamentals:

• Use current regulatory guidance, emission factors, and calculation tools;
• Maintain complete process data, stack test records, and QA/QC documentation; and
• Assign knowledgeable staff to track AERR, GHGRP, and state-level changes.

Key to Remember: Accurate air emissions inventories play a crucial role in protecting public health, supporting air quality regulation, and demonstrating corporate responsibility. By understanding the most common pitfalls, companies can improve compliance and reduce costly reporting errors.

What’s happened?

A quick look at the rule’s development shows:

• 7/28/2025 — OSHA received a petition for rulemaking that covers obligations for ladder retrofits under 1910.28(b)(9).
• 9/15/2025 — OSHA posted a memo confirming it intends to eliminate 1910.28(b)(9)(i)(D).
• 12/18/2025 — OSHA sent its Walking-Working Surfaces (WWS) - Fixed Ladders proposal to the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA).
• 1/13/2026 — OIRA and OSHA met with the American Fuel and Petrochemical Manufacturers (AFPM).
• 1/21/2026 — OIRA and OSHA met with the Employers OSHA Modernization Coalition.
• 1/27/2026 — OIRA plans to meet with attorneys representing the American Petroleum Institute (API).

What did the petition request?

The seven-page petition, written by legal counsel on behalf of the AFPM, API, and American Chemistry Council (ACC), requests that OSHA:

• Withdraw the provision under the WWS standard for fixed ladders that extend more than 24 feet to be equipped with personal fall arrest systems (allowing the continued use of ladder cages or wells); or
• Grandfather fixed ladders installed before a particular date (authorizing the continued use of existing ladder cages or wells for those ladders).

Unjustified provision?

Petitioners argue that OSHA, in its 2010 proposed WWS rule, failed to:

• Take comments on the effectiveness of cages in protecting workers from falls,
• Disclose that the agency was evaluating whether to prohibit cages, and
• Give stakeholders a chance to submit evidence regarding cages.

The petition outlines the differences between the earlier proposed and final rules, noting that the 2010 proposal gave employers the choice to use any of four fall-protection types — cages, wells, ladder safety systems, or personal fall protection systems. However, the 2016 final rule gave a 2036 phase-out date for cages and wells.

The petition goes on to contend that:

• OSHA lacks sufficient evidence to justify prohibiting cages and wells;
• Data collected during the rulemaking process leaned toward preserving employer choices for fall protection; and
• Although the 2016 rulemaking preamble acknowledged the shift away from cages and wells, it did not fully discuss evidence in favor of cages and wells.

Other arguments in the petition

The petition raises several points questioning the benefits of paragraph (b)(9)(i)(D), stating that:

• In the past decade, AFPM, API, and ACC facilities have suffered only a few injuries, with no fatalities involving cages and wells;
• Cages offer passive protection, whereas ladder safety systems and personal fall arrest systems require workers to take action to comply;
• Personal protective equipment (PPE) lies at the bottom of the hierarchy of controls;
• Safety risks also exist for ladder safety systems and personal fall arrest systems; and
• Installing new ladders or retrofitting existing ones introduces hazards to those performing that work.

Finally, the petition addresses significant compliance costs, estimating several billion dollars for tens of thousands of ladders at U.S. refineries alone. Petitioners also cited additional expenses for rerating pressure vessels and engineering any process equipment changes.

What does OSHA say?

OSHA officially announced in a September 2025 memo that it is proposing to remove 1910.28(b)(9)(i)(D). The agency calls it a deregulatory action in line with Executive Order 14192. The memo reasons, “OSHA anticipates this change will allow employers to update their ladders when the ladders reach the end of their service lives, accommodating the lengthy service life of fixed ladders, while significantly reducing costs and offering greater flexibility.”

The WWS - Fixed Ladders proposal reached OIRA on December 18. OIRA typically takes 90 to 120 days for review, but recently a maximum 28-day review period for deregulatory actions was implemented. That means we anticipate OIRA will rush this proposal, so that OSHA may publish it in the Federal Register.

Key to remember

An upcoming OSHA proposal would withdraw 1910.28(b)(9)(i)(D). The rule was spurred by a petition.

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.

CBI extension request process

Businesses that seek to extend a CBI claim beyond its expiration date must submit an extension request. The Federal Register notice describes the following general process:

1. EPA notifies the entity of an expiring CBI claim.

The agency will publish a list of TSCA submissions with expiring CBI claims on the Confidential Business Information Under TSCA (TSCA CBI) website at least 60 days before the claims expire.

EPA will also notify submitters directly through its online Central Data Exchange (CDX). Verify that your company’s contact information on CDX is updated!

Submitters with CBI claims for specific chemical identities should reference the TSCA Chemical Substance Inventory (column EXP) to confirm expiration dates.

2. The entity submits an extension request.

The extension request for an expiring CBI claim includes:

• A certified supporting statement confirming the four assertions at 40 CFR 703.5(a), and
• Answers to EPA’s substantiation questions.

EPA lists the general questions that apply to all CBI claims at 703.5(b)(3). Additional questions at 703.5(b)(4) apply to entities claiming CBI for specific chemical identities.

Businesses must submit the extension through EPA’s CDX at least 30 days before the CBI claim expires. The agency is currently developing a new application on CDX for submitting extension requests, which it plans to launch before CBI claims begin expiring in June 2026.

If there’s a delay, EPA will notify submitters on the TSCA CBI website. Additionally, the agency won’t publicize any information from expiring CBI claims until businesses have the opportunity to submit extension requests and the agency reviews them.

3. EPA reviews the extension request.

If the agency approves the extension request, the information in the CBI claim will remain protected for up to another 10 years.

If the agency denies the extension request, the information in the CBI claim can be publicized once the claim expires. EPA will notify submitters of denied claims through CDX at least 30 days before it plans to disclose the information.

Expiring CBI claims: What are the options?

Regulated entities have three ways to address expiring CBI claims:

• If you choose to maintain the CBI claim, submit the extension request to EPA.
• If you decide not to renew the CBI claim, you can either:
  • Withdraw the CBI claim through CDX, or
  • Allow the CBI claim to expire (i.e., take no action).

Keep in mind that if you withdraw a CBI claim or allow it to expire, EPA can publicize this information without notifying you beforehand.

Who’s impacted?

The CBI extension request process applies to companies that have made CBI claims under TSCA on or after June 22, 2016.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (signed into law on June 22, 2016) made amendments to TSCA, including adding a 10-year expiration date to CBI claims.

Key to remember: EPA established the process for entities to request extensions of expiring CBI claims for information submitted under TSCA.

What this means for California/CARB

The California Air Resources Board (CARB) may continue state-level enforcement of CTC for all in-state, out-of-state, and foreign-registered vehicles. However, they cannot claim SIP credit for emissions reductions from vehicles not registered in California.

What this means for trucking companies

Trucks not registered in California may still be subject to California enforcement, but EPA will not enforce those requirements federally. California cannot use those inspections or emissions reductions for SIP compliance.

Compliance options for testing

To comply with CARB’s CTC requirements, trucking companies can choose from multiple emissions testing options. Those options include:

• A telematics-based approach: The telematics option is a “set-it-and-forget-it” onboard diagnostics (OBD) test option. With this option, once the telematics device is set up on the vehicle, required data is automatically submitted to CARB.
• Hiring a credentialed tester to perform compliance testing: There are more than 30,000 credentialed testers, 15,000 of which are for hire. The “Credentialed Tester List - CTC-VIS” website features real-time updates to the list.
• Checking out a testing device from specified locations: Anyone can become a credentialed tester by taking the Tester Training Course and passing the exam in the Clean Truck Check-Vehicle Inspection System (CTC-VIS). Fleets can then perform the testing in-house without the need to hire third-party testers.
• Permit option: Finally, for vehicles that rarely operate in California, the HD I/M Regulation includes a five-day pass provision that allows any vehicle in the fleet to be operated in California for up to five consecutive days once per year without meeting the requirements of the rule.

FAQ: Does this regulation apply to my truck or fleet?

CTC applies to almost all diesel, alternative fuel, and hybrid vehicles, with a gross vehicle weight rating over 14,000 pounds, operating on public roads and highways in California — even if they are not registered in California. This includes:

• Government vehicles;
• Motorcoaches;
• Transit, shuttle, and school buses;
• Hybrid vehicles;
• Commercial and personal use vehicles;
• California registered motorhomes; and
• Single-vehicle fleets.

Freight contractors and brokers must:

• Only contract with compliant vehicles or fleets, and
• Comply with the record keeping requirements.

Ports and railyards also have requirements regarding CTC compliance status of vehicles and access to their facility.

Key to remember: EPA’s recent action does not end California’s CTC program. CARB enforcement continues, and trucks operating in the state are still required to comply with all program requirements.

How the NRII process works (and why delays happen)

Under the NRII, medical examiners must enter a driver’s exam result into the National Registry no later than the end of the next calendar day. The FMCSA then sends these results to the appropriate SDLA so the information can be posted to the CDL MVR.

The most frequent source of delays is data-entry errors in the examiner’s electronic medical card (MCSA5850). Mistakes in key identifying information — such as name, date of birth, CDL number, or state of licensure — prevent the SDLA from validating the submission. When this happens, examiners receive an email alert but must correct the error before the SDLA can receive and post the record.

The FMCSA recognized early that MVR update delays were widespread, which led to several waivers. The current waiver, effective January 11 through April 10, 2026, allows carriers and drivers to rely on paper medical cards for up to 60 days after the exam.

Best practices for drivers and carriers

Proactive steps can significantly reduce both delays and compliance disruptions. Consider implementing the following:

1. Schedule exams early.

Encourage drivers to complete their exams at least two weeks before their certification expires. Maintain internal reminders to ensure drivers promptly report exam results and share a copy of their medical card.

2. Verify license information at the end of the exam.

Ask drivers to confirm that their personal information — name, date of birth, CDL number, and licensing state — matches what appears on the medical examination report (MCSA5876). Incorrect CDL formatting continues to be one of the most common causes of the NRII upload failures.

3. Request and retain a paper medical card.

Even though examiners aren’t required to issue a paper medical card, the FMCSA recommends that they do so during the NRII transition. Drivers should receive a paper card as these are legal proof of certification for up to 60 days under the current waiver and help prevent them from being placed out of service. A copy should go in the driver qualification file to be replaced by the updated MVR within 60 days.

4. Check MVRs within 2–5 days after each exam.

Early monitoring helps identify issues while examiners may be more receptive and able to quickly correct errors.

How to troubleshoot delayed MVR updates

The FMCSA recommends following a structured, three step troubleshooting process:

Step 1: Contact the medical examiner.

Confirm that they addressed any National Registry validation errors and resubmitted the MCSA5850. This is the most common issue that’s easily resolved.

Step 2: Reach out to the SDLA’s CDL help desk.

If issues pop up, carriers and drivers should contact the CDL help desk, not the general help line. Ideally, the call should include both a knowledgeable carrier representative and the driver. Begin by explaining that the examiner has already corrected any errors. Then request that the SDLA’s medicalcertification team “pull” the record directly from the National Registry.

Step 3: Contact the FMCSA Registry Support team if needed.

If steps 1 and 2 don’t resolve the issue, carriers and drivers should contact the FMCSA Registry Support team:

Phone: (617) 4943003

Email: fmctechsup@dot.gov

If the problem still isn’t resolved, carriers and drivers should document the steps taken to show good-faith efforts were made. If the driver’s MVR doesn’t update within the waiver period, to reduce the risk of having a disqualified driver citation, carriers should consider removing them from CMV driving until the MVR updates.

Key to remember: When carriers and drivers proactively manage medical exam timing and closely track MVR updates, they are less likely to face disqualification surprises or other compliance issues.

Overview of OSHA requirements

The Occupational Safety and Health Administration (OSHA) outlines employers’ obligations relating to walking-working surfaces in 29 CFR 1910 Subpart D. The regulations apply to general industry, including trucking enterprises.

OSHA’s regulations offer an employer flexibility, presenting multiple options as it decides which fall protection method or system works best for its operation.

Employers can utilize guardrails and handrails, covers, personal fall protection, designated areas, and safety net systems. The regulation also requires employers to:

• Identify and evaluate slip, trip, and fall hazards and provide appropriate personal protective equipment (PPE) (i.e., personal fall protection) under requirements in 29 CFR 1910 Subpart I, “Personal Protective Equipment.”
• Conduct regular and periodic inspections and maintenance of all walking-working surfaces in their workplace.
• Determine the inspection frequency for all surfaces including ramps, stairs, etc., and document that inspections were performed on schedule.
• Provide training that enables employees to recognize the hazards of falling and the procedures to be followed to minimize these hazards, including the use of personal fall protection, proper ladder climbing techniques, etc.

How does this rule impact motor carriers?

When it comes to specific OSHA requirements, such as “Walking-Working Surfaces,” it often boils down to control. It goes almost without saying that Subpart D impacts a motor carrier’s on-site workers such as technicians, yard jockeys, dispatchers, managers, and the office staff. The company is responsible for the environments they work in and walk in.

But what about drivers?

The motor carrier’s responsibility under the walking-working surfaces requirements applies when drivers are at the carrier’s facility. This may include, for example, pretrip or post-trip vehicle inspections and the surfaces drivers encounter as they walk around the employer’s terminal.

However, the walking-working surfaces requirements don’t apply to time the drivers spend on the road or at locations outside of the motor carrier’s control, such as shippers, receivers, and truck stops. Providing safe walking-working surfaces is the responsibility of those establishments, not the carrier.

Any hazards at the shipper or receiver’s facility that the driver is exposed to would be the customer’s responsibility and potential OSHA citations.

Best practices for drivers

Best practices for drivers In the case of remote workers such as commercial drivers, the motor carrier should consider risk management best practices. Examples include:

• Developing policies and procedures and providing employee training on OSHA topics such as walking surfaces,
• Providing drivers with PPE,
• Addressing any safety concerns the driver has about customer sites, and
• Investigating and acting on claims that their drivers are behaving in an unsafe manner at a customer’s facility.

Key to remember: For motor carriers, responsibilities under OSHA’s walking-working surfaces may end when a driver pulls out of the lot. But slips, trips, and falls can happen anywhere your driver walks and works. Train and equip all employees to prevent incidents in work environments outside of the motor carrier’s control.

Key provisions

Key provisions of the final rule include:

Strict Eligibility: To be eligible for a non-domiciled CDL, the driver must possess an unexpired foreign passport and hold one of the following non-immigrant statuses:

• H-2A (Temporary Agricultural Workers),
• H-2B (Temporary Non-Agricultural Workers), and
• E-2 (Treaty Investors).

Proof of Eligibility: Applicants must present an unexpired foreign passport and specific Form I-94 documentation to the state driver licensing agency (SDLA). Employment Authorization Documentation (EAD) will no longer be accepted as proof of eligibility.

Mandatory SAVE Verification: State driver licensing agencies must query the Systematic Alien Verification for Entitlements (SAVE) system to confirm every applicant's lawful immigration status.

Specific Validity Period: The validity period for a non-domiciled CDL may not exceed the expiration date of the “Admit Until Date” of the driver’s I-94 documentation or one year, whichever is sooner.

This rulemaking is effective March 16, 2026.

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.

The courts weigh in

After being dismissed from the hiring process, the applicant sued the trucking company, arguing that the rejection violated Pennsylvania’s Criminal History Record Information Act. The Act is a state law that defines how employers can use a person’s criminal past when making hiring decisions. Under the law, employers must:

• Show that a conviction relates to whether someone can do the job in question, and
• Put it in writing if they turn down an applicant based on criminal history.

A district court threw out the case, saying that the law applies only when employers obtain criminal records from state agencies, not when applicants disclose information themselves.

The U.S. Court of Appeals for the Third Circuit disagreed. In reversing the lower court’s decision, the judge explained that the statute focuses on what kind of information an employer receives, not where it comes from. The law protects information that is part of someone's criminal history record, regardless of the source.

The key distinction, the court found, is between the type of information and its origin. When the applicant disclosed his robbery conviction, the company received information that exists in his criminal history record file maintained by state agencies. That triggered the law's protections, even though the company learned about it directly from the applicant rather than through an official background check. 

No impact on ‘ban-the-box’ laws

The trucking company argued that interpreting the law this way would make legislation known as “ban-the-box” laws meaningless. Local ban-the-box ordinances prohibit employers from asking about criminal history on job applications. But the court rejected that reasoning. Pennsylvania's law doesn’t stop employers from asking about convictions; it just limits what they can do with the answers. Ban-the-box laws are another layer of protection cities can choose to require.

The company also tried to use an exception in the statute for information from certain public sources like court documents and police blotters. The court wasn’t persuaded by this argument because even if that exception applied to hiring discrimination claims, it doesn’t cover what an applicant voluntarily shares. The law lists specific exempted sources, and by omitting applicant disclosures from that list, the legislature signaled they shouldn’t be exempt. 

The decision sent the case back to the lower court, where the company will have to defend its actions. That means the trucking company must show why the applicant’s robbery conviction makes him unsuitable to drive their trucks, and whether the company provided proper written notice when it turned him down. 

Employers, especially those in Pennsylvania, New Jersey, Delaware, and the Virgin Islands – the states covered by the Third Circuit – should be aware that this ruling clarifies that criminal history laws apply uniformly. The protections don’t disappear if an applicant chooses to be honest during the hiring process. 

Key to remember: A federal circuit court ruled that learning about a criminal conviction from a job applicant triggered the same legal protections as learning about it through an official background check during the hiring process. 

Counting leave

When employees take leave intermittently or on a reduced leave schedule, employers may count only the amount of leave actually taken toward the employee's 12-week leave entitlement.

The actual workweek is the basis of leave entitlement. This means that if employees work more than 40 hours a week, they get more than 480 hours of FMLA leave. An employee who normally works 50 hours per week, for example, would get 600 hours of FMLA leave.

When calculating how much leave employees take, if an employee who otherwise works 40 hours a week takes 8 hours off, the employee would use one-fifth of a week of FMLA leave. Similarly, if an employee who normally works 8-hour days works 4-hour days under a reduced leave schedule, the employee would use one-half of a week of FMLA leave.

For employees who work a part-time schedule or variable hours, employers may pro-rate the amount of FMLA leave. If, for example, an employee who generally works 30 hours per week takes 10 hours of leave under a reduced leave schedule, the employee's 10 hours of leave would equal one-third of a week of FMLA leave.

Employers may convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee's total normally scheduled hours.

Recouping leave under the rolling backward method

Employers should be aware of the differences between accruing leave and employees recouping leave when employers use the 12-month rolling backward method for their 12-month leave year. In that situation, employees get more FMLA leave as their old leave “rolls off” the calendar and more leave “rolls on.”

Key to remember: Employees get 12 weeks of FMLA leave, but they don’t accrue the leave at a certain rate — 12 weeks is 12 weeks. How much hourly leave they get, however, is based on their actual workweek.

Certification

A certification supporting the need for FMLA leave might indicate that the employee needs time away from work to prevent flare-ups. If it doesn’t, and an employee takes a substantial amount of leave for such a reason, the employer may ask for a recertification — especially if the employer doubts the reason for an absence.

As part of the request, the employer may give the health care provider a record of the employee's absence pattern and ask the provider if the serious health condition and need for leave are consistent with such a pattern.

Other steps to avoid a flare-up

In some situations, employers might wonder if they could ask the employee to work from a different location instead of taking leave if the location is the cause of a flare-up. Unfortunately, the employee is entitled to the leave for a qualifying reason, including time off to avert a flare-up.

If an employee chooses to work from a different location, employers wouldn’t count that time as FMLA leave because the employee is still working.

Key to remember: Employers must count and protect an employee’s time off to avoid a flare-up of a medical condition.

Topics and worker types covered

Topics addressed by these bills include musculoskeletal disorders, heat stress, infectious diseases, wildfire smoke, and workplace violence. Federal OSHA does not have comprehensive standards for any of those hazards. Some existing standards are related — sanitation, first aid, personal protective equipment, and injury/illness recordkeeping and reporting.

Without comprehensive standards, OSHA may turn to enforce these hazards under the General Duty Clause (GDC), Section 5(a)(1) of the Occupational Safety and Health Act. Yet, the GDC poses a high bar for inspectors. OSHA can only cite under Section 5(a)(1) if the alleged hazard: exists, is recognized, is serious, and has a feasible means to reduce that hazard.

If any one of the four criteria is missing, a GDC citation will not hold. On the other hand, putting a standard in place both mandates protections and makes it much easier for OSHA to cite employers for the hazards.

Worth noting, some of the bills specifically cover domestic workers, firefighters, warehouse workers, public sector workers, and healthcare and social service workers.

Nine bills to watch

Below are the nine Congressional bills (and companions) currently under consideration:

• LET’S Protect Workers Act, H.R. 6597 — Introduced 12/10/2025. This bill would raise civil monetary penalties for employers that violate occupational safety and health requirements. Willful and repeat violations would jump to $800,000 each. The bill would also direct OSHA to close a loophole that prevents citations for failing to maintain required injury and illness records if the violation is not discovered within six months. Instead, every day an employer fails to make or maintain a record during the five-year record retention period would be a violation.
• Domestic Workers Bill of Rights Act, S. 3396 and H.R. 3971 — Introduced 12/9/2025 and 6/12/2025, respectively. This bill would require a board to make recommendations to OSHA for standards that affect the well-being of domestic employees, including infectious diseases protections.
• Healthy Lungs for Heroes Act, S. 3183 — Introduced 11/18/2025. This bill would require OSHA to develop an appropriate exposure limit for wildfire smoke for wildland firefighters and supporting staff where current PELs are not a good fit for wildfire situations. The bill would also require the incorporation by reference of a National Fire Protection Association standard on respirators for wildland fire-fighting operations.
• Warehouse Worker Protection Act, H.R. 4896 and S. 2613 — Introduced 8/5/2025 and 7/31/2025, respectively. This bill would require OSHA to publish a standard for ergonomic program management with elements including hazard identification, job evaluations, hazard control, training, and medical management. The bill also calls for OSHA to publish a standard on first aid and employer-provided occupational medicine consultation services. Finally, it would update the Occupational Safety and Health Act (OSH Act) so a contest notice would not stay abatement of a violation.
• Asunción Valdivia Heat Illness, Injury, and Fatality Prevention Act, H.R. 4443 and S. 2298 — Both introduced 7/16/2025. These bills would require OSHA to promulgate a standard to protect workers from heat-related injuries and illnesses. Such a standard may have measures like engineering controls, administrative controls, personal protective equipment, medical and emergency protocols, training, and a written plan.
• Recognizing that climate change poses a growing threat to public health and necessitates coordinated action to mitigate its impacts and safeguard the health and well-being of all people in the United States, H.Res. 568 and S.Res. 318 — Both introduced 7/10/2025. These bills say that OSHA “should” promulgate a worker heat protection standard that, in accordance with the best available evidence, establishes the highest degree of health and safety protection feasible.
• Protecting America’s Workers Act, H.R. 3036 — Introduced 4/28/2025. This bill would require OSHA to update its incorporations by reference of national consensus standards, with some exceptions. The bill makes other changes to the OSH Act to expand coverage to public sector workers, increase protections, and raise penalties.
• Safe Workplaces Act, H.R. 2647 — Introduced 4/3/2025. This bill taps OSHA to issue nonmandatory guidance on activities and work practice controls that can be implemented at work to reduce workplace violence.
• Workplace Violence Prevention for Health Care and Social Service Workers, H.R. 2531 and S. 1232 — Both introduced 4/1/2025. These bills mandate OSHA to issue a standard that requires covered employers within the healthcare and social service industries to develop and implement a comprehensive workplace violence prevention plan. The plan must include procedures and methods for risk assessment and identification of risks, hazard prevention and controls, reporting and investigation, emergency response, and training.

Key to remember

Several bills in Congress would modernize the OSH Act and mandate OSHA rulemaking to strengthen or increase worker protections.

Mental health vs. physical safety

Unlike physical safety measures, such as machine guarding, which is objective and relatively easy to regulate, mental health is inherently subjective. This makes it far more challenging to address using clear-cut regulations. OSHA’s past attempts to regulate ergonomics and current efforts around heat illness illustrate this difficulty. Human variability, differences in physiology, acclimation, and personality, makes one-size-fits-all rules nearly impossible. Mental health is even more complex because it’s deeply tied to individual experiences and perceptions.

Currently, regulatory bodies like OSHA provide guidance for mental health in the workplace rather than enforceable standards. There is no definitive “doctrine” for mental health compliance, and much of what exists is based on expert opinion rather than codified law. This doesn’t mean organizations should ignore mental health. On the contrary, its impact on safety, productivity, and overall culture is undeniable.

The employer’s challenge

The challenge for employers has two parts. First, they need to decide what mental health means in their organization. Second, they need to find ways to measure its impact.

In manufacturing, where I’ve spent much of my career, I use data to judge whether changes are working. If I were starting a mental health program, I would look at clear measures, like productivity, before and after the program begins. While these numbers don’t prove cause and effect, tracking them over time can help show whether the program is making a positive impact.

Of course, workplaces are ever changing. External factors like economic conditions or incentive programs promoting initiatives can skew results. That’s why mental health strategies should be progressive and proactive, implement, measure, adjust, and repeat. Even if the data isn’t perfect, maintaining programs that foster well-being is better than doing nothing. Over time, consistent efforts will help build a culture where mental health is valued as much as physical safety.

Actions leaders can take now

• Normalize mental health conversations by encouraging open and judgment-free discussions. Leaders should lead by example by sharing how they handle stress.
• Train managers to notice warning signs by giving them simple tools to spot changes in behavior, mood, or job performance that may point to mental health concerns.
• Offer flexible work options such as flexible hours, remote work, or mental health breaks. These options help employees manage stress and balance work and life.
• Give employees access to support by providing Employee Assistance Programs (EAPs), counseling, and wellness apps. Make sure these resources are easy to find and use.
• Include mental health in safety programs by treating it as part of overall workplace safety. Add stress management and coping skills alongside physical safety training.
• Track and improve mental health efforts by watching trends like attendance, engagement, and productivity. Use employee surveys to understand how people feel and improve programs.

Key to remember: Mental health affects how people work, make decisions, and stay safe. When employers value mental well-being as much as physical safety, everyone benefits.

Sampling results

Testing for a hazardous substance in Subpart Z would create an exposure record. Those regulations cover asbestos, lead, chromium, formaldehyde, and many other substances. In addition, the tables in 1910.1000 list hundreds of substances from carbon dioxide to vegetable oil mist. Testing for harmful substances that are not listed could also create an employee exposure record.

In addition, measuring noise, vibration, temperature extremes, or particulate matter will usually create an exposure record that must be retained for 30 years. However, measurements of conditions in a normal range (such as office temperature readings) are not exposure records under the OSHA standard.

Not every sample or measurement will create an exposure record. OSHA clarified that exposure records describe the identity of, and possibly the level of exposure to, a toxic substance or harmful physical agent. For example, if an indoor air quality evaluation sampled the HVAC system, the results might identify non-toxic bacteria typical in office or work environments. That result would not be an employee exposure record.

Known hazards

If employers test for a substance with known human health effects, OSHA considers the results to be an employee exposure record even if the levels are below a listed action level or permissible exposure limit (PEL). The term “employee exposure record” is not limited to records showing that exposure exceeds a particular level, but rather on the mere fact that occupational exposure exists. For example, testing for carbon dioxide levels would create an exposure record even if the results were well within safe parameters.

Of course, if exposures are below the action level, the employer can usually stop monitoring, unless a process or work practice changes in a way that could increase exposure. However, if exposures are above the action level but below the PEL, employers may need to conduct periodic monitoring, all of which become exposure records.

On the other hand, the standard does not cover situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-occupational situations.

Finally, OSHA notes that employee questionnaires are not exposure records because they don’t characterize exposures. For example, employers might survey the workforce about things like comfort, temperature, or similar conditions without actually measuring conditions.

However, if questionnaires address medical information, they can be “employee medical records” under 1910.1020. For instance, the questionnaire under the respiratory protection standard is a medical record, but not an exposure record. OSHA also requires maintaining certain medical records. For more information, see our article, Who retains employee medical records?

Key to remember: Employers must save employee exposure records of hazardous substances even if the measured amount was within acceptable levels.

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.

Other exit signage requirements to consider

The International Fire Code (IFC) was not adopted by OSHA; however, it’s likely to be referenced by local fire marshals. The IFC states, “Exit signs are not required in rooms or areas that require only one exit or exit access.” Generally, a room or area that holds fewer than 50 people is permitted to have only one exit. These rooms are typically smaller with an exit that is close and obvious, so an exit sign shouldn’t be needed inside the room. For example, individual offices, small conference rooms, storage rooms, and bathrooms usually don’t have exit signs because the way out is obvious.

Additional requirements for office exits require they:

• Are free of obstructions. No materials or equipment may be placed, either permanently or temporarily, within the exit route.
• Are arranged so that employees aren’t required to travel toward a high hazard area unless the path of travel is effectively shielded from the high hazard area by suitable partitions or other physical barriers.
• Don’t pass through a room that can be locked, such as a bathroom, to reach an exit or exit discharge, or lead into a dead-end corridor.
• Are adequately lighted so that an employee with normal vision can see along the exit route.
• Have each exit route door be free of decorations or signs that obscure the visibility of the exit route door.

Key to remember

When considering exit signs for smaller offices, employers must determine the size of the room, path of travel to an exit, and how obvious the exit would be based on room size. Generally, a room intended to hold fewer than 50 people is permitted to have only one exit and would not require an exit sign.