Transportation Monthly Round Up - November 2023

Hazard communication (HazCom)

OSHA’s HazCom standard (29 CFR 1910.1200) is designed to inform workers about chemical hazards and how to protect themselves.

Key definitions: A "hazardous chemical" is any chemical which is classified as a physical hazard or a health hazard, a simple asphyxiant, combustible dust, or other hazards not that may not be classified but still pose a serious danger.

Indicators: Any workplace where hazardous chemicals are used, stored, or processed needs a hazard communication program. Labels, safety data sheets (SDSs), and employee training are essential components.

Training requirements: Training must cover how to read and understand labels, the purpose and location of SDSs, and specific protective measures when handling hazardous chemicals. Training must be provided upon initial assignment and updated whenever new chemical hazards are introduced.

Hazardous materials (Hazmat)

The DOT’s hazmat regulations (DOT 49 CFR Parts 171-180) include substances that, if transported improperly, can harm people, property, or the environment. By correctly handling and moving these materials, organizations can avoid accidents and safeguard both public health and the environment.

Key definitions: A "hazardous material" is any substance or material capable of posing an unreasonable risk when transported in commerce. This can include flammable, toxic, and reactive substances.

Indicators: Activities involving the loading, unloading, and handling of hazardous materials require adherence to hazmat regulations. This requirement also applies to organizations that make or maintain packaging, or a part of packaging, that's marked or sold as suitable for transporting hazardous materials commercially.

Training requirements: Workers handling hazmat must undergo specific training on material classification, safe handling, emergency response, and transportation. Training must be provided within 90 days of initial assignment and a refresher at least once every three years. Training must also be documented and retained for a minimum of three years.

Hazardous waste (Hazwaste)

The EPA’s hazwaste regulations (40 CFR Parts 260-299) refer to any waste material that could potentially harm the environment or human health if not managed correctly. Additionally, many states have hazardous waste requirements beyond EPA regulations.

Key Definitions: Hazardous waste includes materials classified as toxic, ignitable, corrosive, or reactive, based on specific criteria.

Indicators: Managing hazardous waste follows the material’s entire lifecycle including the generation, transportation, treatment, storage, and disposal, known as "cradle-to-grave." Requirements are based on the quantity of waste generated.

Training requirements: Employees involved in hazardous waste management must receive training on waste handling, storage, labeling, and disposal procedures. Annual training requirements are based on generator quantity status.

Hazardous waste operations and emergency response (HAZWOPER)

OSHA’s HAZWOPER standard (29 CFR 1910.120) protects workers involved in hazardous waste management and emergency response. HAZWOPER covers a wide range of activities, including cleanup operations and responses to hazardous substance releases.

Key definitions: A hazardous substance is any material that can harm health and safety if released into the environment. In the context of HAZWOPER, this includes materials that pose risks in emergencies, such as spills, leaks, or other uncontrolled releases.

Indicators: Workers and organizations tasked with hazardous waste cleanup, spill response, and emergency operations require specialized training, equipment, and procedures.

Training requirements: HAZWOPER training is intensive and includes specific requirements depending on job roles. Training levels include 24-hour, 40-hour, and 8-hour refresher courses for different exposure risks. Employees learn about hazardous substance properties, emergency response procedures, PPE use, and decontamination processes.

Process Safety Management (PSM)

OSHA’s PSM standard (29 CFR 1910.119) aims to prevent accidental chemical releases that could seriously harm employees or the environment by including safety measures, risk assessments, and employee training to ensure safe operations. It is especially important in industries handling highly hazardous chemicals including facilities with high-risk chemical processes.

Key definitions: OSHA defines a "highly hazardous chemical" as any substance that poses a significant risk of causing serious harm to people, property, or the environment due to its toxic, reactive, flammable, or explosive properties.

Indicators: Any workplace handling large volumes of hazardous chemicals or using complex chemical processes including chemicals that are specifically listed by OSHA in appendix A of the standard, are present in quantities above specified thresholds, or exhibit properties that make them likely to cause a major incident.

Training requirements: PSM training covers safe operating procedures, hazard analysis, and incident investigation for employees involved in high-risk processes. Training must be provided at initial assignment and a refresher at least once every three years.

Key to remember: Chemical management is a complex task. Understanding what regulatory requirements apply will ensure compliance as well as minimize the chance for dangerous incidents.

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.

Here are your options for January/February

Carriers must display one or more of the following to travel through IFTA member jurisdictions for the first two months of 2023:

• A valid 2023 IFTA license and two IFTA decals issued by an IFTA member jurisdiction (you filed on time and received your new credentials in time for 2023); or
• A valid 2022 IFTA license and two IFTA decals from an IFTA member jurisdiction as long as the renewal application has been filed for 2023 (you filed on time but didn’t receive your new credentials in time for 2023); or
• A valid trip permit issued by the IFTA member jurisdiction through which they are operating.

Remember, IFTA license renewals for 2023 must be filed with your base jurisdiction before the end of 2022. The two-month grace period is for display of renewal credentials, not to file your renewal application for those credentials.

For early filers

Carriers renewing credentials may operate with the new 2023 IFTA decals and license two months prior to the effective date shown on the credentials. These carriers must still file a fourth quarter report for 2022, including all operations for that quarter.

Credentials 101: IFTA license and decals

Any person or carrier based in an IFTA member jurisdiction operating a qualified motor vehicle(s) in two or more member jurisdictions is qualified to license under the IFTA program. Applications request basic information about the carrier and its operations and must be submitted with the applicable license and/or decal fees. Fees vary by jurisdiction.

The IFTA license is valid for the period of January 1 through December 31. Each IFTA license must be renewed for the next calendar year. The base jurisdiction will notify its licensees of the renewal requirements.

If the applicant meets all IFTA application requirements, the base jurisdiction will issue the IFTA license and decals. The license contains an account number assigned by the base jurisdiction. This account number is then used for reporting all IFTA activity of the licensee.

The licensee is required to make legible copies of the license and carry one copy in each vehicle. Since January 2019, the license may be carried electronically. Failure to display a copy of the license may subject the vehicle operator to the purchase of a trip permit and/or a citation. Each licensee is issued two vehicle identification decals for each qualified vehicle in the fleet. Decals must be placed on both sides of the vehicle’s cab (passenger and driver side). Failure to display the identification decals in the required locations may subject the vehicle operator to the purchase of a trip permit and a citation.

Key to remember: For seamless operation into the new calendar year, file your IFTA renewal application with your base jurisdiction well before December 31, 2022.

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!

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.

5 tips to help employees handle changes

Even though change is inevitable, people are often uncomfortable with it. Humans crave a certain level of predictability and consistency in their daily lives, and when that flow gets disrupted, it can cause stress, anxiety, skepticism, and discord.

Here are five ways employers can help their employees face changes in 2025:

1. Explain why there’s a change. It’s hard for people to buy into something if they don’t know the “why” behind it. Be as transparent as possible and explain it using plain language, not industry jargon. Be prepared to repeat the message as needed. Once might not be enough for employees to absorb the information, or they may have questions along the way.
2. Lead with empathy. Change can bring about fear of the unknown and saying, “Don’t worry about it,” won’t help. Leaders have probably had time to process the information, but the news could cause big emotions in employees hearing about it for the first time. Be empathetic, saying something like, “I know this seems scary.”
3. Include employees in the process. As employees come to grips with the change, they might have questions, concerns, or ideas to share. Encourage their engagement and seek out their input. The more involved they are, the better.
4. Create a positive vision. Whatever the change is, it’s likely a means to a better end, such as higher profit margins, streamlined benefits, or increased productivity. This is where a strategic leader shines by creating that picture of a better tomorrow for employees.
5. Note the wins. As the company moves forward with the change, remember to occasionally highlight the positives along the way so that employees see that their buy-in was worth it. Progress should be communicated in a way that’s tailored to the specific workforce. The point is to call out any rewards the change is bringing and that the company is moving in the right direction towards the future.

Key to remember: Is a workplace change coming in 2025? Follow these five tips to help get employees on board.

Entry-level driver training (ELDT)

The ELDT rule, which came into effect in February 2022, was designed to ensure that all new CMV drivers receive a consistent, standardized level of CDL training.

ELDT mandates are uniform across the country, however, the specific training curricula can vary depending on the type of vehicle or the specific endorsement the driver seeks (e.g., Class A or B CDL or passenger, school bus, or hazardous materials endorsement).

ELDT must be administered and presented by a school or entity listed on the Federal Motor Carrier Safety Administration’s (FMCSA) Training Provider Registry (TPR). The training consists of two main components: theory (classroom-based instruction) and behind-the-wheel (range and public road) training.

Theory training

The theoretical portion of the ELDT includes topics such as vehicle inspection, basic control, safe operation, and the handling of hazardous materials. Driver understanding is demonstrated by achieving a test score of at least 80 percent on theory assessments.

Behind-the-wheel training

The practical component of the ELDT requires entry-level drivers to gain real-world experience by driving under the supervision of a qualified trainer.

Under the ELDT regulations, all entry-level drivers must demonstrate proficiency in vehicle inspections, backing skills and on-the-road driving before being allowed to take the CDL skills test. While proficiency is left to the discretion of the instructor, the FMCSA believes that demonstrated proficiency requires some level of successful repetition of each of the required skills.

Modernized CDL testing

In contrast to the ELDT's focus on training, the modernization of CDL testing places an emphasis on evaluating the skills and knowledge of drivers. The modernization of testing aims to make CDL assessments more reflective of real-world driving conditions and incorporate new technology into the process.

Computerized knowledge testing

Written tests for CDL applicants were previously administered on paper, they are now largely conducted via computer-based testing (CBT). This allows for quicker testing, more accurate assessments, and the ability to include multimedia elements like video simulations.

Skills test improvements

While the core elements remain the same, modernized tests now include more comprehensive evaluations. Vehicle inspection tests now require the driver to be tested on fewer items.The primary focus is on safety-critical items. Drivers are required to describe items they are inspecting, what they are looking for and why they are inspecting each part. The basic control skills test is conducted in a smaller area. Skills drivers are tested on include forward stop, straight-line backing, forward offset tracking and revers offset backing.

Primary differences

It is important to understand that modernized skills testing does not negate any of the requirements in the ELDT mandate, they are two stand-alone requirements.

The primary difference between ELDT and modernized CDL testing lies in the focus. ELDT is aimed at equipping drivers with the knowledge and practical skills required to operate a CMV safely before taking the CDL exam. Modernized CDL testing is designed to evaluate how well drivers apply their knowledge and skills in real-world situations.

These two elements—training and testing create a more skilled and prepared commercial driving workforce. A focus on both foundational training and modernized evaluation, aims to meet the growing challenges of the transportation sector in the 21st century.

Key to remember: Better prepared drivers result in safer highways.

The case

Celestia requested time off under the FMLA to take care of her sister, who was dying of cancer. Her employer told her the FMLA did not provide leave to care for an adult sibling. Eventually, when Celestia did not show up for work one day, the employer fired her.

The employer then took a few missteps:

• It lied and told unemployment authorities Celestia had quit.
• It failed to give Celestia the required COBRA continuation notice regarding her health insurance, despite disenrolling her from the insurance plan.
• It threatened to bring sanctions if she brought an FMLA lawsuit.

Celestia sued, nonetheless, claiming that her termination and alleged retaliatory actions violated the FMLA and other laws.

In court

The court indicated that the FMLA does not provide details on whether it recognizes the kind of “in loco parentis” relationship Celestia claimed. The “relationship” (in terms of the FMLA) didn’t develop until her sister was an adult, and after the sister’s cancer began. The FMLA doesn’t provide much detail on how to address this specific situation. Typically, employers take the approach of whether or not there was a parent/child relationship when one of those involved was under age 18.

This court, however, turned to the common law, which confirms that “in loco parentis” relationships can form after a person is 18 or after the onset of disability. It then said that Celestia successfully showed she intended to, and did, assume a parental role over her sister.

The ruling

The FMLA envisions “in loco parentis” relationships to involve children who are 18 or older. It doesn’t, however, say whether the “in loco parentis” relationship or the child’s disability must have started before the child became an adult; or whether the relationship must have been in place before the child’s incapacity. A “child,” according to the court, can refer to a child of any age; every adult is the child of their parents.

The U.S. Department of Labor, in guidance from 2013, supported this by saying that the age of the onset of the disability is irrelevant when employers determine whether a family member is considered a child under the FMLA.

This doesn’t mean that every eligible employee can now take FMLA leave for siblings. This was the ruling of one court in one case. This does, however, shed light on how employers should approach all requests for FMLA leave more carefully and consider all the facts involved before denying leave.

Key to remember: The FMLA neither prohibits nor automatically entitles employees to take time off to care for their adult siblings who have become incapable of self-care in adulthood. As this case shows, in some situations, employees may take FMLA leave to care for an adult sibling.

Chapman v. Brentlinger Enterprises, Sixth Circuit Court of Appeals, Nos. 23-3582/3613, December 13, 2024.

Workplace policies rule

Many company policies require employees to be at work the day before and after the holiday to receive holiday pay.

In that situation, if an employee is not at work the day before and after the holiday because they are on FMLA leave, they would not be entitled to holiday pay – unless the policy specifically says they do.

Remember, the FMLA rarely governs employee pay; it provides for job-protected, unpaid leave.

Such a policy doesn’t always include how the FMLA leave is treated, but that doesn’t mean it can’t.

If a company has no related policy, it will need to see how it addressed such situations in the past. If a company never had to handle such a situation, it would need to figure out how to proceed., being careful not to set an unwanted precedent.

Now’s a good time to plan

For employers that would like to craft a holiday pay policy, now might be a good time to do so. A new policy could indicate whether employees on FMLA leave would be entitled to holiday pay or not. That way, employees will know what to expect before the first snowflakes begin to fall.

Knowledgeable legal counsel should review all policies, so getting a head start is suggested.

Employers that already have holiday pay policies might want to review them. If they don’t include information about the pay during FMLA leave, perhaps it’s time to add such information.

Key to remember: Employees on FMLA leave are entitled to holiday pay based on company policy, not on the FMLA statute or regulations.

Rope or chain

The regulation at 1910.29(b)(15) clarifies that ropes used for rails must be inspected as necessary to ensure they continue to meet strength requirements. This shows that OSHA allows using ropes or chains for loading areas, docks, and other locations where removable sections are needed.

Among other things, the material must be at least one-quarter inch in diameter. The top rail must be able to withstand 200 pounds of force without stretching lower than 39 inches. A top rail must be 42 inches, plus or minus 3 inches, so the minimum height is 39 inches. Since the regulation requires a mid-rail, a single rope or chain will not suffice, but two or more strands could meet the guardrail standards.

Less than four feet

A guardrail or other fall protection is required for any unprotected edge of four feet or higher. Lower docks or platforms (say, 43 inches high) do not require fall protection. Of course, a fall from that height could cause serious injury so employers should have some protection or warning in place. Note that most loading docks are more than four feet high and will need fall protection. For related information, see our article Why you need guardrails on open dock platforms.

Again, ropes or similar barriers could be an option. At heights below four feet, the materials would not technically need to meet the strength requirements for guardrails, but a stronger system would offer better protection. Still, even using brightly colored ropes as a visual warning could help prevent an employee from inadvertently stepping off the edge.

Note that California may require rails for platforms 30 inches or higher.

No guardrail required?

The federal regulations list only three situations when employees could be four feet or more above a lower level, but do not need guardrails or other fall protection. They are:

• Dockboards used only with motorized equipment per 1910.28(b)(4);
• Repair or service pits for vehicles per 1910.28(b)(8); and
• Work on low-slope roofs in specific circumstances per 1910.28(b)(13).

Even though guardrails or other fall protection is not required, employers still need to take preventative measures.

Workers using the dockboards as described in the regulation must receive training on fall hazards and mitigation measures under 1910.30.

For service and repair pits, only employees trained under 1910.30 may approach within six feet. The employer must also have floor markings and/or warning lines at least six feet from the edge of the pit, as well as signs reading “Caution – Open Pit.”

For employees on low-slope roofs, the exception from fall protection applies only when:

1. Work will be performed at least 15 feet from the edge,
2. The job qualifies as “infrequent and temporary,” and
3. The employer enforces a rule prohibiting employees from going within 15 feet of the edge unless they’re using fall protection.

The regulation does not define the terms “infrequent” and “temporary” but OSHA clarified that temporary tasks usually require an hour or two at most, and infrequent means the task is performing only on occasion, such as monthly. An example would be replacing a filter on a roof-mounted AC unit once per month.

Key to remember: A guardrail is usually a solid structure but can include rope or chain when necessary. Fall hazards under four feet or hazards that meet specific regulatory exceptions do not require guardrails.

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.

Who’s impacted?

OSHA’s proposed heat rule would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agricultural sectors under the agency’s jurisdiction with a few exceptions. In addition to temperatures, heat generation from industrial processes and radiant heat such as ovens and furnaces have also been considered throughout the rulemaking process.

Employers would be responsible for determining which work activities are covered by the standard. They may have some work activities that are exempt from the standard and others that are covered.

Want to learn more about the OSHA's rulemaking process? Check out our article, "What's the holdup? The 6 stages of OSHA's rulemaking process."

What’s being proposed?

The proposed heat injury and illness prevention rule intends to protect employees from the effects of working in excessive heat in both indoor and outdoor workplaces. The rule would require employers to:

• Develop an injury and illness prevention plan to control heat hazards in both indoor and outdoor workplaces affected by excessive heat,
• Develop a plan to protect new or returning workers unaccustomed to working in high heat conditions,
• Provide employee training,
• Establish and implement procedures to respond if a worker experiences signs and symptoms of a heat-related illness, and
• Take immediate action to help a worker experiencing signs and symptoms of a heat emergency.

How do I comment?

Employers and other stakeholders wishing to comment on the proposed rule can do so by going to https://www.regulations.gov/commenton/OSHA-2021-0009-4761 and referencing Docket No. OSHA-2021-0009.

Key to remember: Employers have until January 14, 2025 to comment on OSHA’s proposed heat injury and illness prevention rule.

OSHA recordkeeping requirements

OSHA's recordkeeping requirements found under 29 CFR 1904 are designed to ensure that employers maintain accurate records of work-related injuries and illnesses. Additionally, the data helps OSHA, and the employer, identify and correct workplace hazards, preventing future incidents.

Recording: Employers with more than 10 employees, except those in partially exempt industries, are required to record work-related injuries and illnesses using OSHA forms, including the following:

• Form 300: Log of Work-Related Injuries and Illnesses.
• Form 300A: Summary of Work-Related Injuries and Illnesses, which must be posted annually from February 1 to April 30.
• Form 301: Injury and Illness Incident Report, detailing each incident.

Additionally, employers must retain these records for a minimum of five years and make them available to employees, former employees, and their representatives upon request.

Reporting: Certain severe injuries and illnesses must be reported directly to OSHA within specific time frames: fatalities within 8 hours, and in-patient hospitalizations, amputations, or losses of an eye within 24 hours.

Electronic submission: Some employers are also required to electronically submit their forms annually to OSHA based on establishment size:

• 250+ employees must electronically submit their OSHA 300A annual summary data.
• 20-249 employees in certain industries must electronically submit OSHA 300A annual summary data.
• 100+ employees in certain industries must electronically submit data from their OSHA 300 log, 301 incident report forms, and 300A annual summary.

MSHA recordkeeping requirements

Similar to OSHA, MSHA's requirements, found under 30 CFR Part 50, are intended to assist employers in maintaining accurate records of workplace injuries and illnesses, as well as identifying and addressing hazards.

However, requirements are tailored to the unique risks and operational characteristics of the mining industry and include the following:

• Reporting: All accidents, injuries, and illnesses must be reported using MSHA Form 7000-1 within 10 working days of the incident.
• Record retention: Reports must be kept at the mine or nearest mine office for at least five years.
• Multiple injuries: Separate forms must be completed for each miner injured in the same incident.
• Quarterly reports: Mine operators must submit MSHA Form 7000-2 quarterly, detailing employment, coal production, and injuries/illnesses. Deadlines are April 15, July 15, October 15, and January 15.

Clarifying the relationship

Both OSHA and MSHA are under the Department of Labor and provide safety and health regulations for workers. However, OSHA's jurisdiction spans most private sector employers and employees, as well as some public sector workers, covering a wide array of industries. In contrast, MSHA specifically regulates surface and underground mining operations.

This division of responsibilities can sometimes create confusion, but an interagency agreement established when MSHA was created in the 1970s clarifies the authority and coordination between OSHA and MSHA, which includes:

• Jurisdiction: MSHA's authority oversees all aspects of mining operations. This includes the lands, structures, facilities, equipment, and other properties used in mining and covers both surface and underground mines.
• Regulatory gaps: If MSHA does not have specific regulations for a particular safety hazard, OSHA regulations can be applied ensuring no gaps in protecting workers. For example, if a mining operation involves activities like construction or maintenance that are not explicitly covered by MSHA, OSHA standards may be enforced to address those hazards.
• Collaboration: OSHA and MSHA collaborate on rulemaking, policy development, and training programs to ensure consistent safety standards across industries. They share information, conduct joint inspections, and address emerging safety and health issues, ensuring regulations keep pace with technological advancements and industry changes. This unified approach helps avoid conflicting regulations and promotes worker safety.

Key to remember: OSHA covers a broad range of workplaces and MSHA focuses specifically on mining operations. While both agencies strive to work together seamlessly, they do have differing recordkeeping requirements that must be followed to ensure compliance and safety in their respective workplaces.

Alternative glove selection for COVID-19

Here’s a summary of glove types and the protection given to help evaluate alternatives.

Butyl gloves protect against a variety of chemicals such as peroxide, highly corrosive acids, strong bases, alcohols, aldehydes, ketones, esters and nitrocompounds. Butyl gloves also resist oxidation, ozone corrosion and abrasion, and remain flexible at low temperatures. However, they do not perform well with aliphatic and aromatic hydrocarbons and halogenated solvents.

Natural (latex) rubber gloves have good elasticity and temperature resistance, and resist abrasions well. They protect against most water solutions of acids, alkalis, salts, and ketones. Latex gloves may cause allergic reactions and may not be appropriate for all employees. Hypoallergenic gloves, glove liners, and powderless gloves are possible alternatives for employees who are allergic.

Neoprene gloves protect against hydraulic fluids, gasoline, alcohols, organic acids, and alkalis. Their chemical and wear resistance are generally better than gloves of natural rubber.

Nitrile gloves are intended for jobs requiring dexterity, and they stand up even after prolonged exposure to substances that cause other gloves to deteriorate. They offer protection when working with greases, oils, acids, caustics, and alcohols but are not recommended for use with strong oxidizing agents, aromatic solvents, ketones, and acetates.