What are the consequences of committing a drug or alcohol violation in a personal vehicle?

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.

What qualifies as a mobile off-road source?

Mobile sources, according to EPA, include vehicles, engines, and motorized equipment with exhaust and evaporative emissions. There are two types of mobile sources:

• On-road sources, such as passenger and commercial vehicles; and
• Off-road (or nonroad) sources, like chain saws, generators, and excavators.

Nonroad emission requirements are based on the source and emission system types.

How do the regulations impact mobile nonroad source owners and operators?

The rules for owners and operators primarily relate to handling, maintaining, and rebuilding the emission-controlling components on nonroad vehicles, engines, and equipment.

Don’t tamper with emission controls

The regulation at 1068.101(b) bans owners, operators, and everyone else from impeding or removing emission controls from certified mobile nonroad vehicles, engines, and equipment. Examples include using software to increase emissions, removing emission control devices from equipment, and operating engines with incorrect fuel.

It also prohibits anyone from making, selling, or using defeat devices to bypass, impair, defeat, or disable emission controls.

Follow the manufacturer’s instructions

Manufacturers are required to provide emission-related installation and maintenance instructions as well as a warranty that the nonroad engine or equipment complies with EPA’s regulations. Owners and operators are responsible for maintaining the product (1068.110(e)).

Implement these actions to help ensure proper maintenance of your nonroad engine or equipment:

• Follow the manufacturer’s emission-related installation and maintenance guidelines.
• Operate the vehicle, engine, or equipment solely according to the manufacturer’s instructions.
• Understand the terms of the manufacturer’s warranty. In addition to improper maintenance (like using an unauthorized service facility if applicable), other actions can void the warranty, such as using the engine or equipment outside its intended purposes stated by the manufacturer.

Rebuild engines according to the regulations

Anyone who installs or has a rebuilt engine installed in a regulated piece of nonroad equipment must confirm that the engine complies with 1068.120. These are some of the major requirements:

• Only use a rebuilt engine that’s built/rebuilt to a certified configuration that meets the same or more stringent emission standards.
• If you install an engine rebuilt by someone else, check all emission-related components per the original manufacturer’s recommended practice.
• Keep required records for all rebuilt engines (except for certain spark-ignition engines with low total displacement) for at least two years.

Key to remember: EPA regulates emissions from all mobile sources, including off-road vehicles, engines, and equipment.

Timeline

The following is a basic timeline for complying with rules from the Federal Motor Carrier Safety Administration (FMCSA). It also includes certain best practices for hiring new drivers and getting them qualified to be on the road. Though it’s 27 steps long, don’t panic — some items apply only to drivers who hold a commercial driver’s license (CDL), and some are optional.

The order in which many of these steps are performed can be customized to your needs. Be sure to consult with an attorney or HR expert for guidance on complying with all labor and employment laws.

1. Get driver application. From each driver-applicant, obtain a completed driver-specific employment application that complies with 49 CFR 391.21. Ensure your application includes information about the driver’s rebuttal rights concerning their safety performance history (obtained in step #13 below). Review the application for any missing information, disqualifiers, gaps in employment, having several employers in a short time, history of violations, or other red flags.
2. Ensure basic qualifications. Ensure the candidate meets basic DOT, company, and insurance company qualifications to be a driver (391.11), including but not limited to:
   • Being at least 21 years old to engage in interstate commerce, or old enough to be a driver within your state.
   • Holding only one currently valid driver’s license of the proper type and with any needed endorsements — and no restrictions — for the vehicle(s) and cargo you intend to assign.
3. Get MVRs. Obtainmotor vehicle record(s) (MVRs) from the state driver licensing agency(ies) (or other licensing authority(ies)) where the driver-applicant was licensed during the past three years. If required by the state/authority, obtain the driver’s written authorization for you to obtain their MVR. If using a third party to obtain the MVR, have the driver sign the required Fair Credit Reporting Act (FCRA) disclosure statements. Note that the MVR(s) must be obtained within 30 days after hire (unless needed to verify medical certification), but earlier is better. (391.23)
4. Perform background check (optional). Perform any other company-required background checks, in compliance with state laws and the FCRA.
5. Run PSP report (optional). Obtain the driver-applicant’s pre-employment screening program (PSP) report, after obtaining the driver’s written consent using the approved PSP consent form. This report will reveal the driver’s roadside inspection and accident history. Be sure to keep the consent form in the driver’s file.
6. Meet hiring standards. Compare the driver’s record to the company’s hiring standards, which must meet or exceed FMCSA minimums in 391.11, to ensure the driver is eligible for hiring as a driver based on driving experience, driving record, crash history, employment history, etc. Be consistent in applying the standards.
7. Conduct an interview. Conduct a driver interview (this step may occur earlier, if desired). Make sure your interview questions comply with the Equal Employment Opportunity Commission (EEOC) guidelines. During the interview, make sure the candidate can read and speak English well enough to converse with the general public, follow traffic signs/signals, respond to official inquiries, and make entries on reports and records.
8. Extend an offer. Extend a conditional offer of employment. Note that inquiries or tests concerning the applicant’s medical and drug/alcohol testing history/status may only occur after this conditional offer of employment has been extended.
9. Schedule tests and classes. Schedule the applicant for a DOT pre-employment drug test (if a CDL driver), DOT medical exam (if you will not be accepting the driver’s current Medical Examiner’s Certificate), and a driver orientation class.
10. Complete the I-9. Have the driver complete an I-9, Employment Eligibility Verification form. Verify acceptable identification documents from the applicant and certify the form. Section 1 must be completed by the end of the driver’s first day of paid work. You must complete Section 2 within three business days of the date employment begins.
11. Complete the contract. Have the driver sign your employment contract, as applicable.
12. Get authorization for testing history. Get written authorization from the driver to obtain the driver’s drug & alcohol testing history from previous employer(s), if the driver was subject to DOT testing under an agency other than the FMCSA. (391.23)
13. Obtain safety performance history. Submit a request to the driver-applicant’s previous and current employers (going back three years, but only to employers for whom the applicant drove a CMV). This request is made to verify employment and obtain the driver’s DOT-recordable accident history. Also request the driver’s DOT-regulated drug/alcohol testing history from any non-FMCSA-regulated employers, if applicable. Document your actions, and if there is no reply after at least two attempts, maintain a record of your “good-faith effort” to obtain the information. You must obtain the information or document your effort within 30 days after hire, but earlier is better. Note that the drug/alcohol history may be requested only after you have made a conditional offer of employment to the driver.
14. Get medical card or MVR. Obtain a copy of the driver’s current Medical Examiner’s Certificate. If the driver holds a CDL or CLP, you may only use a paper medical certificate for up to 15 days after the driver’s last medical exam as proof the driver is certified. After that, you must have an MVR showing that the driver is medically certified.
15. Verify NRCME listing. Verify and document that the driver’s medical examiner was listed on the National Registry of Certified Medical Examiners at the time of the last exam, even if you accept the driver’s pre-existing medical certificate in place of a new exam.
16. Obtain proof of variance. Obtain documentation of any medical variance the driver may have, if applicable.
17. Road test. Do one of the following:
    • Perform a road test and complete the required form and certificate, OR
    • Get a copy of the driver’s existing road-test certificate if less than three years old, OR
    • Get a photocopy of the driver’s CDL (unless the driver will operate a double/triple trailer or tank vehicle, or is using the alternative vision standard (391.44) for the first time, in which case a road test in that type of vehicle is required). (391.31-391.33)
    ——— STEPS 18-24 FOR CDL DRIVERS ONLY ———
18. Verify self-certification. Obtain documentation showing the type of driving the driver self-certified that they will perform. This self-certification is made to the state licensing agency by the driver, and should be available on the driving record. Verify that the driver is properly self-certified for the type of driving that will be performed for you (such as “non-excepted interstate” as one of four options). (383.71(g))
19. Query the Clearinghouse. Log in to the Drug & Alcohol Clearinghouse and request a full pre-employment query. The query results cannot be retrieved until the driver then logs in to the Clearinghouse to grant consent. Verify that the driver is not in a “prohibited” status. Note: The query may be obtained before or after conducting a road test, but must be before the driver operates a CMV in commerce.
20. Get consent for future queries. Have the driver sign a consent form that will allow you to perform annual “limited” Clearinghouse queries, unless you intend to run “full” queries each year. The driver may decide how long such consent will last, but it may be for the length of employment.
21. Issue drug/alcohol materials. Issue the required drug/alcohol educational materials and your company drug/alcohol policy to the driver and maintain a signed certificate of receipt. (382.601)
22. Perform drug test. Send the driver for a DOT pre-employment drug test, as scheduled in step #9 above (unless using the exception in 382.301(b)). Obtain the test results before there is any CMV driving. (382.301)
23. Perform required training. As applicable:
    • Ensure the driver has a longer-combination-vehicle (LCV) training certificate, or ensure the driver receives LCV training, before operating a longer combination vehicle (Part 380, Subpart A).
    • Conduct hazardous-materials training if the driver will be dealing with hazardous materials.
24. Add driver to testing program. Enroll the driver in your random drug and alcohol testing program. This must be done within no more than 30 days of the pre-employment test completed under step #22.
    ——— FOR ALL DRIVERS (continued) ———
25. Complete orientation. Ensure the driver passes your new-driver orientation process.
26. Verify HOS compliance. Before the driver operates a CMV for you, obtain either:
    • A signed statement showing the driver’s total on-duty time for the past 7 days and the time at which the driver was last relieved from duty (to verify compliance with hours-of-service rules prior to driving for you), OR
    • The driver’s logs for the prior 7 days. (395.8(j)(2))
27. Complete/verify all documentation. Verify that all required documentation has been compiled for the Driver’s Qualification file (391.51), Driver Investigation History file (391.53), and Drug/Alcohol Testing file (382.401), as applicable. The file(s) may be kept electronically or on paper.

Key to remember: Follow these steps to properly hire and qualify a commercial motor vehicle driver.

NOTE: The timeline above is designed to provide reasonably accurate and authoritative information in regard to the subject matter covered. It is made available with the understanding that J. J. Keller is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert service is required, the services of such a professional should be sought. J. J. Keller shall not be held liable in any degree for any loss, damage, or injury caused by any omission, error, misprinting, or ambiguity present in this material.

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!

Clearinghouse compliance and audits

The Federal Motor Carrier Safety Administration (FMCSA) emphasizes compliance with Clearinghouse requirements.

Consider the following rankings of each Clearinghouse violation out of all violations for a given year:

The rankings suggest that many carriers are failing to perform the Clearinghouse administrative tasks.

Even though Clearinghouse violations aren’t classified as acute or critical to affect a motor carrier’s safety rating, they can result in monetary fines not to exceed $7,155. This has been the case since 2021.

Changes since launch

In addition to the civil penalties, several other changes have been implemented since the Clearinghouse’s inception, including:

• Roadside inspection violations: Beginning April 1, 2020, inspectors began checking commercial drivers’ statuses in the Clearinghouse. Drivers found to be operating a commercial motor vehicle (CMV) while in a prohibited status will be placed out of service and the carrier cited. The violation impacts the carrier’s Compliance, Safety, Accountability (CSA) Controlled Substances and Alcohol BASIC score.
• Changes to background checks: Effective January 6, 2023, the Clearinghouse is the sole means of investigating a driver’s drug and alcohol testing violations under Part 382. The FMCSA drug and alcohol history questions were removed from the safety performance history records request.
• Driving under the influence (DUI) resulting in a non-conviction: On March 8, 2023, FMCSA issued a Notice of Enforcement Policy stating the agency won’t enforce the return-to-duty (RTD) requirements when it receives documentary evidence that a DUI while operating a CMV requiring a commercial driver’s license (CDL) didn’t result in a conviction.
• Alerts following a query: Beginning March 8, 2023, motor carriers are notified via email within 12 months of any query if there was new information on a driver’s Clearinghouse record. The alert doesn’t contain what changed. The employer must request a full follow-on query to see details.
• Student driver accounts: After obtaining a commercial learner’s permit (CLP), student drivers who are enrolled in a CDL training program must register with the Clearinghouse as a “student” if the program is not affiliated with an employer. These student drivers are viewed as self-employed. Student drivers must work with a consortium/third-party administrator (C/TPA) and designate them on their account. This is the same process as owner-operators who are not leased onto another motor carrier.
• CDL/CLP downgrades: No later than November 18, 2024, state driver’s licensing agencies were required to downgrade CDL/CLPs when a driver’s Clearinghouse status is prohibited due to a reported violation. Licensing privileges are only restored after the driver completes the return-to-duty process and it is recorded in the Clearinghouse.

Core elements remain the same

As the Clearinghouse database continues to evolve, core elements will remain the same.

Failed drug and alcohol tests, actual knowledge, and refusals to test must be reported to the Clearinghouse. Who reports it depends on the role (motor carrier, C/TPA, or medical review officer).

Substance abuse professionals (SAPs) must report a completed return-to-duty process, while employers or C/TPAs report negative RTD tests and completed follow-up testing programs.

Timely submission of data is critical to ensure that a driver’s record is accurate and up to date. If information is not communicated as required, it can lead to a driver operating a regulated vehicle when prohibited or a delay in resuming safety-sensitive functions and/or reclaiming a CDL following evaluation, treatment, and RTD testing.

Key to remember: The Clearinghouse is a vital tool for motor carriers to identify drivers who are currently prohibited from operating CMVs. FMCSA has made the database a priority and expects motor carriers to do the same or face fines and high CSA BASIC scores.

What is 392.2C?

Section 392.2C is enforcement’s code for “failure to obey traffic control device.” The C stands for control.

The citation appears in the severity table for the Unsafe Driving BASIC (Behavior Analysis and Safety Improvement Category). The violation has been assigned a value of 5 out 10, with 10 being the most severe. The violation is used when calculating both the carrier’s and driver’s Unsafe Driving BASIC scores.

In most instances, the traffic control device is not a signal light or stop or yield sign. Rather, it is the sign that instructs the driver to pull into a weigh station.

Who must pull into a weigh station?

The vehicles that must stop at scales and inspection locations vary from state to state and even from location to location within a state. The “weigh scale ahead” or similar sign should be the driver’s guide.

If the sign reads:

• All vehicles over 16,000 pounds, the driver can safely bypass the scale if under the weight threshold.
• All commercial motor vehicles, the driver should pull in. It is far better to be waived or green lighted through than to be chased down.

Often those who operate commercial vehicles not requiring a commercial driver’s license, such as a large pickup truck or small box truck, mistakenly believe weigh scale inspections are just for larger rigs.

What happens when a driver ignores signage?

If a driver goes past a weigh station without pulling in as directed by a traffic control device, enforcement will pursue and pull over the driver. The officer will then escort the driver back to the weigh station for a roadside inspection.

Even if the driver was honestly confused whether the sign applied to the vehicle, it is too late. And more than likely enforcement’s interest has been piqued. It is highly unlikely the driver will be waived through at this point, and 392.2C will be entered on the roadside inspection report.

Handling violations

CSA’s enforcement model suggests finding the root cause of roadside inspection violations to prevent future occurrences and ultimately improve BASIC scores.

A violation of 392.2C may have one of several root causes, such as:

• Confusion over applicability
• Inattentiveness (missing the sign)
• Running late
• Risky behavior (taking the chance that no one will pursue)
• Concern over other violations discovered once stopped

Whatever the reason, it must be addressed with the driver. Corrective actions range from refresher training to termination. If the driver was trying to avoid enforcement for other reasons (drugs, alcohol, over HOS limits), these other violations need to be addressed accordingly.

Key to remember: Failing to obey a traffic control device will be used in calculation of the CSA Unsafe Driving BASIC scores. Motor carriers should address the root cause of the violation so it does not recur.

For-hire vs. private

For-hire carriers use vehicles to transport people or property and are paid for their service. The fee could be a direct fee like a fare or a rate but could also be other indirect forms of compensation. Examples of for-hire operations include a trucking company that hauls other people’s property for a fee (direct compensation) or a hotel that includes in its service the transportation to and from the airport to the hotel (indirect compensation).

Private carriers, on the other hand, transport only their own goods or people. Examples include a manufacturer that uses its own commercial vehicles to transport its product, a construction or landscaping company that uses commercial vehicles to transport equipment and employees to job sites, or a utility company that operates commercial vehicles in support of its operations.

For-hire operating authority

While private carriers are not required to obtain operating authority from the FMCSA, for-hire carriers are required to get authority to move property or people that belong to somebody else and get paid for their service. Having authority is often referred to as having an MC Number.

The most common types of authority are:

• Property for-hire
• Passenger for-hire
• Household goods
• Broker
• Freight forwarder

If a company never operates a commercial motor vehicle (CMV), it is possible to have authority, but not have a USDOT number. For example, straight brokers or freight forwarders.

As part of obtaining for-hire authority, carriers must designate process agents and demonstrate financial responsibility (have proper insurance coverage).

One size does not fit all

Authorities are not all-inclusive. Separate authority is needed for each type of service offered. For instance, a for-hire, over-the-road carrier that also wants to be able to resell its extra demand will need both for-hire and brokerage authorities. A company is required to pay a $300 one-time fee for each type of authority needed.

Permanent authority required

There are no temporary permits available to substitute for authority. For-hire operations may not be performed until the proper authority has been granted. It’s not uncommon for otherwise private carriers to become for-hire carriers to generate revenue on back-hauls or help balance capacity and demand during slow periods or seasons.

Getting it right

Carriers need to get it right when it comes to authority. Carriers required to have authority — but don’t and operate anyway — can get themselves into trouble. Penalties for operating without proper authority can get expensive and can result in out-of-service orders.

Which date should be on our posters?

In some cases, employers need to display only the latest version of a poster, the one with the most recent revision date. In other cases, multiple versions of a poster will be complaint, and an employer can display either the most recent version or a previous one.

Here are revision dates to look for on the federal postings on your wall:

• Employee Rights Under the Fair Labor Standards Act (FLSA): 04/23
• Employee Rights Under the Family and Medical Leave Act (FMLA): 04/23, 04/16, or 04/13
• Know Your Rights: Workplace Discrimination is Illegal: 06/27/2023
• Employee Rights: Employee Polygraph Protection Act (EPPA): 02/22 or 07/16
• Job Safety and Health: It’s the Law (Occupational Safety and Health Act (OSHA)): 2019 (previous versions also acceptable)
• Your Rights Under USERRA (Uniformed Services Employment and Reemployment Rights Act): 04/2017 (previous versions also acceptable)

Where should posters be displayed?

In addition to displaying the most recent version of a poster, it is important to place the poster in a location where it is easily visible and readily accessible to employees. This could be in a hallway near a common entrance, in a cafeteria or break room, or near a time clock.

In a large building with multiple entrances or break rooms, more than one set of posters may need to be displayed. When a company has multiple buildings on a large corporate campus, posters must be placed in each building where employees are reporting to work.

What happens if I don’t display labor law posters?

If labor law posters are not properly displayed, a company may face a fine or the increased risk of a lawsuit from employees who were not made aware of their rights.

Higher DOL posting penalties took effect on January 15, and the Equal Employment Opportunity Commission (EEOC) is expected to raise the penalty for the Know Your Rights posting soon. The current maximum posting penalties are:

• FMLA: $216 for each separate offense
• Job Safety and Health (OSHA): $16,550 for each separate offense
• EPPA: $26,262 for any violation of the law (including a posting violation)
• Know Your Rights: $680 for each separate offense

The maximum fine is more likely to be levied in cases of willful noncompliance or in conjunction with other penalties.

State and sometimes local postings must also be kept up-to-date. Fines for non-compliance for these posters vary.

Key to remember: Failing to display the correct labor law posters can be a costly mistake. One way to ensure that the right posters are displayed is to check the date on the poster.

What are the risks?

If an employer offers an employee light duty under WC, the employee may turn it down and continue to take leave under the federal Family and Medical Leave Act (FMLA). In doing so, however, the employee risks losing the WC benefits.

FMLA leave can run concurrently with WC. For that to happen:

• Both laws must cover the employer,
• The employee must meet the eligibility criteria for both types of leave, and
• The reason for the time off must qualify under both laws.

Can the employee be fired?

If an employee turns down light duty, the FMLA would still protect the employee’s job. For the FMLA to apply, however, the employee’s occupational limitation(s) must also be an FMLA serious health condition.

While WC applies only to occupational injuries and illnesses, the FMLA doesn’t have those limitations. It includes both occupational and non-occupational injuries and illness.

The FMLA and workers’ comp also provide for different forms of protection and benefits.

• The FMLA gives eligible employees 12 weeks of job-protected, unpaid leave.
• Workers’ comp provides for medical care and income replacement.

Doctor’s input

When an employee’s injury or illness is work-related, a WC doctor usually tells the employer about the employee’s restrictions. Employers may use this information to determine whether the employee has an FMLA serious health condition as defined by the law.

If the WC information is complete enough to determine an FMLA serious health condition, the employer shouldn’t ask the employee for a separate FMLA certification.

If, however, the information from the WC doctor is not enough for an employer to determine if the occupational condition is also an FMLA serious health condition, and how much time off the employee needs, the employer may ask for a separate FMLA certification.

Otherwise, under the FMLA, employees get to choose which doctor to have an FMLA certification completed. Employers don’t get to dictate the doctor, including a company doctor.

A WC doctor could indicate that an employee can return to work, while an employee’s own doctor indicates that the employee needs more leave under the FMLA.

In that situation, if the employee remains on leave, they likely lose the WC benefits, but their job is protected.

Key to remember: While a workers’ comp doctor might indicate an employee can return to modified work, an employee could turn it down and remain on FMLA leave.

Which states require captive-audience meeting postings?

The posting requirements for captive meeting laws vary by state:

Illinois: Post information about the Worker Freedom of Speech law as of January 1, 2025.

Maine: Display information about the state’s Captive Audience statute after a standardized posting is made available by the state.

Minnesota: Display the Employer-Sponsored Meetings posting from the state.

New York: Post the text of the state’s Discrimination Against Engagement in Certain Activities law.

Oregon: Display the Captive Audiences poster from the state.

Washington: Display the text of the state’s Free Choice Act or a posting from the state when one is made available.

Alaska, California, Connecticut, Hawaii, and Vermont have captive-audience meeting laws, but do not require employers to display related information .

Key to remember: Employers in some states need to display a captive-audience meeting posting to make employees aware of their rights.

Tracking leave

For hourly (nonexempt) employees, employers must pay employees for any hours worked and keep track of that time. If employees work remotely, they might be required to track and report their work hours.

For salaried (exempt) employees, employers don’t have to track their work hours, but must still keep accurate records of the time spent on FMLA leave.

Blocking access

To avoid non-compliance risks with tracking leaves, employers might choose to cut employees’ work access while on extended leave. This can include not only access to the physical workplace but also access to the virtual workplace, including emails and messages. Someone from IT might need to be involved.

If employers don’t want all communications shut down, they could work with employees to identify other means of communication, such as a personal email or phone number. That way, employees can continue to share information such as their intended return date. Employers should also ensure that important messages get through.

If access is not cut off, employers need to make sure that employees know that they should not work during leave and that there could be consequences for doing so.

Policies help

To help ensure consistency, employers should have well-communicated policies on not working during leave and what employees can expect. A well-written and communicated policy can:

• Help employees feel like they are not being punished by being banned from work,
• Show that employers take FMLA leave seriously, and
• Prohibit supervisors from asking employees to work while on leave.

If an employee violates the policy and does any work during leave, employers can look at it as a policy violation and apply their applicable discipline.

Key to remember: Employers may cut off access to work during leave, but doing so requires some careful forethought.

1. What are the electrical training requirements?

Training is required for employees who are at risk of electric shock that cannot be eliminated by safe electrical installations. Some occupations listed by OSHA (Table S-4) are automatically included, but other workers who might reasonably face similar risks must also be trained.

All employees need to know the safety-related work practices relevant to their jobs, as specified in OSHA's standards (§§ 1910.331–1910.335).

Unqualified Workers:

These are employees who don’t work directly with live electrical systems but might be exposed to hazards. They need to learn any safety practices related to electricity that are important for their safety, even if those practices aren’t specifically listed in the OSHA standards.

Qualified Workers:

These are employees allowed to work on or near exposed live electrical parts. They must be trained to:

• Recognize which parts of the equipment are live (carrying electricity).
• Understand the voltage levels of live parts.
• Maintain safe distances from live parts based on the specific voltages they’ll encounter.

This training ensures that employees understand the electrical risks they may face and know how to protect themselves and others from harm. By meeting these requirements, employers can reduce workplace injuries and comply with OSHA standards.

2. Does OSHA require us to follow the NFPA 70E standards?

OSHA has not incorporated NFPA 70E by reference into its health and safety regulations. However, the agency does view the NFPA as a valuable resource and encourages employers to adhere to the NFPA standards. OSHA will sometimes use the general duty clause to issue citations for noncompliance with NFPA 70E standards.

The following is OSHA’s position on NFPA 70E from a Letter of Interpretation dated 10/18/2006:

“A national consensus standard can sometimes be relevant to a general duty clause citation. The standard may be used as evidence of hazard recognition and the availability of feasible means of abatement. The general duty clause, Section 5(a)(1) of the OSH Act, is violated if an employer has failed to furnish a workplace that is free from recognized hazards causing or likely to cause death or serious physical harm.”

3. Are arc flash labels required on all electrical cabinets?

If/When an arc flash study is performed on electrical equipment, the arc flash study labels should be affixed to the outside cabinets.

You may need to conduct an arc flash study to determine if it is possible or likely for an arc flash or arc blast to occur in each electrical panel/location. NFPA 70E explains further when an arc flash study may be necessary and how to complete one.

In addition, OSHA states the following for electrical panel labels:

1910.303(e) Marking.

(1) Identification of manufacturer and ratings: Electric equipment may not be used unless the following markings have been placed on the equipment:

• (i) The manufacturer’s name, trademark, or other descriptive marking by which the organization responsible for the product may be identified; and

• (ii) Other markings giving voltage, current, wattage, or other ratings as necessary.

(2) Durability. The marking shall be of sufficient durability to withstand the environment involved.

4. What PPE is needed for arc flash protection?

Unfortunately, there isn’t a straightforward answer to this question. OSHA requires employers to perform a hazard assessment under 1910.132(d) to help determine the PPE requirements. This, in addition to the electrical safety PPE requirements at 1910.137, would identify the PPE you need.

The primary source of arc flash analysis is NFPA 70E, which is a copyrighted publication. OSHA doesn’t adopt it by reference. However, they recognize it as an accurate source of information and can use it as part of a citation. The requirements to perform an arc flash risk assessment are found in NFPA 130.5.

There are specific requirements in Table 130.7(C)(15)(a) and (b) that match the type of equipment being worked with the arc-flash PPE category and arc-flash boundary. Also, table 130.7(C)(15)(c) indicates the type of PPE required for each arc-flash PPE category.

Key to remember: Have more electrical safety questions? Be sure to submit them through theExpert Help feature.

Electronic storage doesn’t mean an internet search

Employers may make SDSs available to employees on a company website or contract with an off-site/web-based SDS provider. It’s not acceptable to require employees to perform an internet search to view or obtain an SDS.

If you maintain SDSs electronically, you must ensure that:

• All employees have adequate computer access, with no restrictions;
• There’s a backup procedure or system (e.g., paper, another electronic system) in place in case the primary system isn’t functioning;
• Employees are trained on how to access the SDSs (both on the computer and the backup procedure or system); and
• There’s a procedure or system in place to ensure that employees can receive a hard copy if they request one and in cases of emergency (which must be transmitted to medical personnel). It’s not acceptable to only transmit the information verbally.

Back it up!

What does OSHA mean by a backup procedure or system? This could be as simple as hard copies of SDSs in binders. If the internet or power goes down, it’s the most reliable option. However, if you have hundreds (or thousands!) of hazardous chemicals, this can be a challenge to maintain. I asked two of my colleagues about their industry experience with SDSs. One colleague said that in his previous position, he printed his SDS library once a year and kept the file in his office, but also placed the SDS inventory on a backup drive that he could access on another computer if necessary.

Another colleague said a second server may be an option, or an up-to-date thumb drive that can be plugged into another computer (provided there’s power). A lot depends on if power outages or internet interferences are of concern (which can be the case at any time). Some employers have the luxury of a secondary location that could provide digital access for some employees, but usually paper backups are the fallback.

Key to remember: If you store SDSs electronically, make sure you meet OSHA’s requirements, including that of a backup system or procedure.

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.

Choosing the correct year

The NAICS codes get updated every five years, with 2022 as the most current. Adding confusion, different OSHA regulations use different versions of the codes. For example:

• Employers trying to determine if they’re exempt from keeping a 300 Log under 1904.2 must use the 2002 codes.
• Employers trying to determine if they must submit injury data to OSHA by March 2nd must use the 2017 codes (OSHA updated from the 2012 codes as of January 1, 2024).

Searching codes online may default to the 2022 version, and some codes changed. For example, the 1904.41 appendix lists 4529 for “Other general merchandise stores” which covers retail outlets like dollar stores and variety stores. However, searching that code in the 2022 list shows “no result” since that number changed. The 2022 NAICS code for general merchandise stores is 4552, but that code does not appear in OSHA’s appendix. Employers using the 2022 NAICS codes may incorrectly believe their establishment is not on OSHA’s list.

Employers can search older versions of the NAICS codes at https://www.census.gov/naics/ which also indicates whether a particular code has changed in more recent versions.

Choosing the correct code

In addition to using the NAICS list for the correct year, employers must choose the correct code for each establishment. If a location engages in more than one type of business activity, employers must choose only one NAICS code for OSHA recordkeeping. OSHA says to choose the code for the activity that generates the most revenue or has the most employees.

In some cases, employers can divide a single physical location into more than one “establishment” as defined in 1904.46. To split a single location into multiple establishments, all of the following must apply:

• Each establishment represents a distinctly separate business;
• Each business engages in a different economic activity;
• No single NAICS code applies to the joint activities at the establishments; and
• Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information.

For example, OSHA noted that if an employer operates a construction company at the same physical location as a lumber yard, the employer may consider each business as a separate establishment.

For employers with multiple establishments, the NAICS code for each location should reflect the primary business activity at each establishment. For example, a manufacturing company might have a separate administration office. Using a manufacturing code for the office might not be appropriate, even though it supports the other manufacturing locations. However, NAICS codes starting 5511 for “Management of Companies and Enterprises” might apply.

For example, code 551114 gives examples as follows:

• Centralized administrative offices
• Head offices
• Corporate offices
• District and regional offices
• Subsidiary management offices

That might better describe a corporate administrative office, if the location does not have any warehousing or manufacturing operations. In fact, codes starting 5511 appear on OSHA’s list of establishments under 1904.2 that are exempt from keeping a 300 Log, so applying the correct code could mean that office doesn’t need a 300 Log at all.

Counting employees

Finally, counting employees gets confusing because some OSHA regulations require counting all employees in the company (combining all locations) and others require counting only the employees at each establishment.

• Section 1904.1 allows an exemption from keeping a 300 Log if the entire company has 10 or fewer employees, combining all establishments.
• Section 1904.2 allows an exemption from keeping a 300 Log based on the NAICS code for each location, regardless of the number of employees at the location.
• Section 1904.41 requires establishments in listed NAICS codes to submit injury data to OSHA annually, but only if the establishment (not the entire company) falls within an employee count range. Establishments with fewer than 20 employees need not submit even if the NAICS code appears in OSHA’s list.

Key to remember: NAICS codes update every five years, and employers must use the correct list, which may differ in various regulations.

Company must improve hiring process, provide training

The staffing company in this case provides temporary employees for commercial, residential, restoration, heavy industrial, and energy construction companies.

The EEOC’s suit alleged that employees told the recruiter that the company didn’t hire women for construction jobs, Black workers in certain areas, or individuals who were over 40 years old, because some clients supposedly did not want them. The recruiter later spoke with the staffing company president who confirmed that practice.

The EEOC further alleged that the staffing company assigned employees by sex and race, which resulted in women getting fewer hours and receiving less pay than men, and Black employees getting fewer hours and receiving less pay than white employees.

In addition to the fine, the staffing company is required to implement a hiring process that provides equal employment opportunities, and must:

• Use objective, job-related criteria in hiring decisions going forward, and
• Provide training on anti-discrimination laws to employees involved in the hiring and recruitment process.

Additionally, the staffing company is required to identify and report to the EEOC information regarding all clients who made or make discriminatory requests for employees based on a protected status such as sex, race, or age, and must provide reports to the EEOC regarding complaints of discrimination based on sex, race, or age.

Hiring lessons for all employers

The start of a new year means new budgets and companies excited to spend money –perhaps on recruiting.

Some recruiters said last year was an odd combination of too many candidates for open positions, but not enough qualified ones. This was according to the annual Recruiter Nation Report by talent acquisition software and services company Employ Inc.

The year 2025, however, is poised to give recruiters a more hopeful vibe that hiring won’t be as hard, according to the report. In fact, 92 percent of recruiters surveyed said they feel “optimistic” about hiring this year.

That optimism might be based on improved hiring tactics such as:

• Using artificial intelligence,
• Incorporating new technology,
• Automating steps,
• Offering candidates higher salaries and better benefits, or
• Being flexible during the overall recruitment process.

Regardless of new technologies and better techniques, when it comes to a compliant hiring process, it’s all about the fundamentals. Companies need to focus on the basics, like not discriminating against job candidates as the construction staffing company did.

No one wants a giant EEOC wrecking ball swinging in and demolishing all the positive recruitment energy a few weeks into the new year.

Key to remember: Despite the excitement of adding new technology to the hiring process, companies should focus on the fundamentals, like not discriminating against job candidates.