Withholding wages can land employers in prison

What’s a WCPP?

When specific uses of chemical substances (i.e., conditions of use) in an occupational setting may pose unreasonable risks of injury to employees or the environment, Section 6 of TSCA requires EPA to develop regulations that reduce or mitigate those risks. The agency implements WCPPs to address the risks.

A WCPP requires covered entities to take certain actions in the workplace that shield individuals who engage with the conditions of use from inhalation and/or dermal risk.

Who’s subject to a WCPP?

The requirements of a WCPP may apply to entities that manufacture (including import), process, distribute in commerce, use, or dispose of a TSCA-regulated chemical substance.

The WCPP program extends beyond those who directly handle a regulated chemical substance to anyone in the workplace who’s exposed or who could be exposed to it (e.g., employees, independent contractors, volunteers, etc.).

What are the components of a WCPP?

A WCPP generally consists of multiple elements:

• Exposure limits, such as Existing Chemical Exposure Limits (ECELs), set the amount or concentration of a chemical substance that can be in the air.
• ECEL action levels establish airborne concentration limits that, if exceeded, activate additional requirements (like more frequent monitoring).
• Exposure monitoring measures and compares air concentration levels to the exposure limits.
• Regulated areas establish where airborne concentrations of the chemical substance are above or have a reasonable possibility to go above exposure limits. Facilities limit access to these areas to control exposure.
• An Exposure Control Plan documents the selection and implementation of controls used to reduce exposure. It's developed according to the hierarchy of controls, which mandates that the most protective actions used to reduce hazardous exposures be considered first. The general order is elimination, substitution, engineering controls, administrative controls, and then personal protective equipment (PPE) use.
• Dermal and inhalation control measures may consist of direct dermal contact control measures (like removing the chemical substance at the source before a worker encounters it) and PPE use (such as requiring workers to wear chemical-resistant gloves or use respirators when handling the chemical substance).
• Training applies to workers who are or could be exposed to the chemical substance and typically covers multiple elements of the WCPP (work processes, proper PPE use, and exposure controls, for example).
• Recordkeeping demonstrates compliance with the WCPP. Facilities usually have to maintain records of monitoring results, Exposure Control Plans, regulated areas and those authorized to use them, training, and PPE programs.
• Downstream notifications alert others in the supply chain of WCPP requirements. Manufacturers, processors, and distributors generally provide the required information on a chemical substance’s Safety Data Sheet.

Know the chemical-specific requirements

If your facility is subject to a WCPP, it’s essential to know the regulations that apply to the specific chemical substance. The chemical’s rule will define the conditions of use to which the WCPP applies and may contain different or additional requirements. Also, state or local regulations may have stricter rules that dictate how (and if) your facility can use the chemical substance.

Key to remember: Facilities that use TSCA-regulated chemical substances may have to comply with EPA’s workplace chemical protection program to protect workers and other exposed individuals from unreasonable health risks.

The importance of CPR and early defibrillation

For every minute a patient is in cardiac arrest, their chances of survival decrease dramatically. When a patient doesn’t have a pulse and isn’t breathing, CPR should be performed until an AED is available. It’s important to note that CPR alone does not restart the heart. CPR is an oxygen circulation procedure. AEDs, on the other hand, are meant for lifesaving intervention.

CPR and early defibrillation are vital components of the emergency medical services (EMS) chain of survival that increases the odds of cardiac patient survival. However, according to the American Heart Association (AHA), even the best CPR can’t provide enough circulation of oxygen to the brain and heart for more than a few minutes. In fact, a patient whose brain is deprived of oxygen for 10 minutes or more seldom recovers.

Signs and symptoms of cardiac compromise

Just like a reliable vehicle, the circulatory system is the human body’s blood transportation system, and the heart is the engine. Amazingly, the heart generates its own electrical impulses, pumping in a regular, rhythmic manner. As with any engine, the heart requires a certain amount of pressure to function and doesn’t work well when clogged with grease or debris. The most common causes of sudden cardiac arrest include a heart attack, electrocution, and asphyxiation — all of which could occur in the workplace. Common signs and symptoms include:

• Chest pain accompanied by a crushing or squeezing sensation,
• Pain that radiates to the jaw or arm,
• Irregular pulse and/or abnormal blood pressure,
• Shortness of breath,
• Cool and sweaty skin,
• Nausea and vomiting, and
• Anxiety or feeling of impending doom.

CPR provides the pressure for the body’s “engine” to oxygen circulating, while an AED provides the electrical impulses to keep the engine pumping.

OSHA requirements regarding CPR

OSHA 1910.151 requires first aid treatment be provided in the absence of an infirmary, clinic, or hospital in near proximity to the workplace used to treat injured employees. This may include assisting a victim of cardiac arrest using CPR or defibrillation.

OSHA requirements for CPR and defibrillation differ considerably. Standards requiring CPR include:

• 1910.146 Permit-required Confined Spaces
• 1910.266 Appendix B: Logging Operations – First Aid and CPR Training
• 1910.269 Electric Power Generation, Transmission, and Distribution
• 1910.410 Qualifications of Dive Team and
• 1926.950 Construction Subpart V, Power Transmission and Distribution

OSHA recommends basic adult CPR refresher training and retesting every year, and first aid training at least once every three years. CPR training include facilitated discussion along with ’hands-on’ skills training that uses mannequins and partner practice.

OSHA requirements regarding AEDs — you might need a prescription

Though OSHA recognizes AEDs as important lifesaving technology that plays a role in treating cardiac arrest, the agency doesn’t currently require their use in the workplace. Instead, OSHA wants employers to assess their own requirements for AEDs as part of their first aid response.

AEDs are considered Class III medical devices which means the Food and Drug Administration (FDA) has some oversight on their use. Almost all AEDs require the purchaser to obtain a prescription from a physician under FDA regulations. The prescription process is meant as a quality control mechanism to ensure AEDs are properly maintained, that all designated responders are properly trained, and assist employers with establishing an emergency response plan for their workplace AED program.

The AHA requires AED operators to also receive CPR training as an “integral part of providing lifesaving aid to people suffering sudden cardiac arrest.” Though easy to use, each AED is slightly different, so training helps users understand the unique traits and supplies for the individual units at their workplace. Additionally, AED users must be trained to understand the signs of a sudden cardiac arrest, when to activate the EMS system, and how to perform CPR.

AEDs are light, portable, easy to use, and inexpensive. They’re best placed near high-hazard areas such as confined spaces, near electrical energy, or in remote work areas. Response time to reach AEDs should be kept within 3–5-minutes.

Training requirements

Many states require or encourage CPR and AED training from nationally recognized organizations. Any AED training should include CPR training. OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as AHA, the American Red Cross, or National Safety Council is recommended.

Keys to Remember

While OSHA doesn’t currently require the use of AEDs in the workplace, they do expect employers to assess their own AED requirements as part of their first aid response. AED training is required by most states and should include CPR with a hands-on practical component.

Background

As of June 23, all SDLAs were expected to be connected to the National Registry of Certified Medical Examiners (NRCME). This system is where examiners enter medical certification information after each exam.

Each state was also expected to switch to the new process once their system was ready to receive CDL driver medical certification information, which would then appear on the MVR and mean that CDL holders would not need physical proof of certification.

A copy of a CDL driver’s MVR was expected to be in the driver’s qualification file after each exam. FMCSA still requires a copy of a non-CDL driver’s medical card to be in the driver qualification file.

This meant that:

• CDL drivers wouldn’t need to self-certify their medical cards with the SDLA because it would be done through the NRCME to SDLA connection, and
• Carriers wouldn’t need to note that the examiner was on the NRCME on the date of the exam.

As of July, 38 states and the District of Columbia have implemented the Medical Examiner’s Certification Integration (NRII) while 12 states are still relying on the paper certificate.

The waiver’s terms and conditions

The waiver does not apply to:

• A driver who doesn’t have a copy of their current, valid medical examiner’s certificate that was issued by a certified examiner 15 days prior; or
• A motor carrier that doesn’t have a copy of its driver’s current, valid medical examiner’s certificate that was issued 15 days prior.

Additionally, the FMCSA reserves the right to revoke the waiver if safety conditions are negatively impacted in terms of the goals and objectives of the original order.

Can a motor carrier retest anytime they want?

Only specific scenarios identified in 49 CFR Part 40 require or permit recollections. They include negative dilute and invalid laboratory results.

A motor carrier can’t perform a second collection to nullify a prior test result. If the medical review officer (MRO) reported a drug test violation, there was an official result. A new drug test will not erase the violation.

Negative dilute scenarios

One of the more common reasons for recollection is a negative dilute result for a urine specimen.

The negative dilute will fall into one of two scenarios:

1. The creatinine concentration of the specimen is greater than or equal to 2mg/dL but less than or equal to 5mg/dL. The MRO will instruct the designated employer representative (DER) to send the driver for an immediate recollection with minimum possible advance notice. The test is performed under direct observation.
2. The creatinine level of the specimen is greater than 5 mg/dL. The MRO will report the result as negative dilute with no instructions. The DER takes one of two actions:
   1. Requests a retest under company policy. This test is also immediate with minimum possible advance notice, but it can’t be under direct observation. The company’s policy must indicate which test types are subject to the retest (e.g., random, post-accident, pre-employment).
   2. Accepts the result as negative because the company policy doesn’t dictate a new collection.

Drivers must know the policy when testing under #2-a prior to the original collection, and the policy must be enforced consistently by the motor carrier.

The second test result becomes the test of record. If the second sample is reported as negative dilute, the result is considered negative at this point. The DER can’t request yet another test.

However, another test could be required as the result of a recollection under #2-a (employer test) if the lab finds the creatinine level greater than or equal to 2mg/dL but less than or equal to 5mg/dL. The MRO will direct the DER to request a third urine specimen (this time under direct observation). This test becomes the test of record, and the process doesn’t go further even if it comes back negative dilute.

Invalid test result

An invalid drug test result occurs when the laboratory finds a substance is interfering with the immunoassay test on the specimen.

After the MRO is notified of the results, the MRO contacts the driver as part of the verification process. The MRO is looking for a medical explanation and/or valid prescription that might be the cause. If the driver is unable to provide a valid explanation, the MRO:

• Cancels the original test,
• Communicates the invalid result to the DER, and
• Directs the DER to immediately send the driver for second collection under direct observation.

The motor carrier must ensure that the driver has minimum possible advance notice when told to go to the collection site. The second test result becomes the test of record.

What if the driver won’t go for the recollection?

It doesn’t matter whether it’s an MRO-mandated retest or employer-based retest for a negative dilute, failing to go for testing after notification is a refusal to test. The DER reports these events to the CDL Drug and Alcohol Clearinghouse as violations.

It’s important to note that recollections apply to pre-employment drug tests too. If you look at 40.191(a)(6), declining to take another test has no protection for those taking pre-employment drug tests.

That said, the prospective employer must notify the driver applicant and arrange a convenient time. This might prove difficult if the driver is working another job. The DER must take into consideration any extenuating circumstances that delay testing, rather than automatically deeming it a refusal to test. DERs always have discretion.

If the driver-applicant refuses to go for the second test altogether (e.g., no longer interested in the job), that’s a much different story than having scheduling conflicts. It’s a refusal to test.

When testing under the carrier’s authority as the result of a negative dilute, it’s important to carefully communicate which test types are covered in the policy. It’s especially important for pre-employment testing, so applicants know expectations.

Key to remember: Retesting helps rule out drug use, and the DOT requires another trip the clinic for a second specimen under specific scenarios.

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!

What is a split specimen?

When a driver gives a urine sample for the purposes of DOT drug testing, the collector will split the specimen into two separate containers. The container labeled as the primary specimen will be tested by the lab; the container labeled as the secondary specimen is only tested if the driver requests that it be tested after the primary specimen is verified as positive, adulterated, or substituted.

How does a driver request that the split specimen be tested?

When the medical review officer (MRO) contacts the driver about a verified positive, adulterated, or substituted test, the MRO will inform the driver of the driver’s right to have the split specimen tested. The driver then has 72 hours from the time of notification to request via the MRO that the split specimen be tested.

What happens while the split specimen is being tested?

Because the driver’s primary specimen was verified positive, adulterated, or substituted, the motor carrier should have already pulled the driver from performing safety-sensitive functions. The driver cannot resume driving while the split specimen is being tested. Whether the driver is reassigned to a non-driving position or is suspended depends on the motor carrier’s drug and alcohol policy.

Who pays for the split specimen to be tested?

The regulations specify that the carrier cannot delay lab testing in order to collect payment from the driver. The secondary specimen should be submitted for testing as soon as the driver requests it, and motor carrier will be billed through the carrier’s lab account. In some cases, the motor carrier can seek reimbursement from the driver for full or partial costs of the split-specimen test.

Is the drug violation reported to the Drug and Alcohol Clearinghouse right away, or does the MRO wait for the results of the test on the secondary sample?

The MRO will report the positive, adulterated, or substituted drug test result to the Drug and Alcohol Clearinghouse within two business days of verifying the result for the primary specimen. Once the MRO receives the lab results for the secondary sample, one of three things happens:

1. The secondary test result reconfirms the primary test result. The violation stands and remains in the Clearinghouse.
2. The test of the secondary sample fails to reconfirm any of the original findings. The test will be canceled, and the MRO will change the result in the Clearinghouse within one business day of receiving the secondary test results.
3. The test of the split specimen does not reconfirm the original result but identifies something suspicious in the secondary sample. The regulations in 40.187 spell out a variety of situations that require the driver to be tested again, such as if the secondary sample is invalid or if part of the original result is reconfirmed but the sample also tests as substituted or adulterated. If any of these complex scenarios applies, the MRO will direct the carrier’s designated employer representative (DER) to immediately send the driver for another collection under direct observation. If that test result is negative and is not adulterated or substituted, the MRO will change the result in the Clearinghouse within one business day of receiving the secondary test results. Otherwise, the violation will stand and remain in the Clearinghouse.

Key to remember: Dividing a urine specimen into two samples allows for a driver to request that the secondary sample be tested if the first specimen indicates drug use. This is an important part of the driver’s right to due process.

The intent of the standard

OSHA’s powered industrial truck (PIT) standard (29 CFR 1910.178) is intended to ensure the safe use of fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines. The standard outlines requirements for operational permits and certification.

And, though not specified in the standard itself, PIT operators must be at least 18 years old per federal child labor regulations.

License and certification Q&A

The OSHA PIT standard clearly defines requirements for training and certification. However, some licensing and certification information isn’t as clear. Here are some clarifications:

Q: Who can train, evaluate, and certify PIT operators?

A: OSHA requires in 1910.178(l)(2)(iii) that, “All operator training and evaluation shall be conducted by persons who have the knowledge, training, and experience to train powered industrial truck operators and evaluate their competence.” The OSHA standard doesn’t further define this requirement or set any specific or additional certifications.

Q: Does OSHA require PIT operators to have a valid driver's license?

A: Federal OSHA has no requirement that a forklift operator has a valid motor vehicle driver's license. Some states are more stringent, so check your local and state requirements to confirm.

Q: Does OSHA have regulations that impact an employee’s ability to operate PITs if they’ve received a DUI or suspended license?

A: Because OSHA doesn't require a valid motor vehicle driver's license, the status of that license doesn’t impact PIT operator permitting. Individual states or the employer may have policies that dictate otherwise.

Q: Are PIT drivers required to have their license on them when they are working?

A: Federal OSHA doesn’t require PIT operators to have a license or permit. However, some states such as Michigan do require this. Typically, in states that require a permit or license, the license must be “readily available.” Companies have the option to require the permit or license be carried with the operator.

Q: Are operators required to be trained on each manufacture of PIT model?

A: A June 15, 1999, OSHA letter of interpretation (LOI) clarifies that operators are to be trained and evaluated in the safe operation for the type of truck they’ll be assigned. Operators wouldn’t need additional training for same truck types but would need additional training when truck- or workplace-related training topics are different.

Q: Do PIT operators need to be recertified if they move from one state to another with the same company?

A: In an LOI dated October 1, 1999, OSHA states, "As long as the employer has a reasonable basis to believe that the third-party trainer is qualified and has a program that meets the requirements of the standard, it can rely on that trainer to conduct the training and evaluation of employees and can certify that these employees have been trained. However, the employer may need to provide additional training on site-specific or truck-specific matters." This shouldn’t require retraining for the same type of forklift as already certified; however, workplace conditions or other factors of the new work location may require training for forklift operation in the other state(s).

Operator Impairments

In addition to being properly trained and evaluated, OSHA expects employers to ensure physical capabilities. OSHA references the American National Standards Institute (ANSI) Standard B56.1-1969. Section 6 clarifies that, “Operators of powered industrial trucks shall be physically qualified. An examination should be made on an annual basis and include such things as field of vision, hearing, depth perception, and reaction timing."

Employers should consider OSHA PIT regulations and the General Duty Clause, ANSI standards, and the Americans with Disabilities Act (ADA) requirements when evaluating physical qualifications. In short, if a worker demonstrates the visual, auditory, and mental ability to safely operate PITs, he or she is permitted to operate them.

Keys to Remember

OSHA requires employers ensure the safe use of forklifts and other powered industrial vehicles. Employers must ensure operators have the knowledge, skills, and physical ability to safely operate PITs.

FMLA certification basics

Employers aren’t required to use certifications, but if they do, the U.S. Department of Labor (DOL) has five different certification forms to use for various FMLA leave situations.

The forms are as follows:

1. Certification of Health Care Provider for Employee's Serious Health Condition,
2. Certification of Health Care Provider for Family Member's Serious Health Condition,
3. Certification of Qualifying Exigency for Military Family Leave,
4. Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave, and
5. Certification for Serious Injury or Illness of a Veteran for Military Family Leave.

Let’s focus on the first two, as these are the most common ones HR administrators use.

Who can fill out an FMLA certification?

The FMLA regulations describe the person who has the authority to fill out a certification as a “health care provider.” The good news is, the regulations include a lengthy list of medical professionals who fit this role.

Under the FMLA, a health care provider includes:

• A doctor of medicine or osteopathy,
• A podiatrist,
• A dentist,
• A clinical psychologist,
• An optometrist,
• A chiropractor (limited to manual manipulation of the spine as demonstrated by X-ray),
• A nurse practitioner,
• A nurse midwife,
• A clinical social worker,
• A physician assistant,
• A Christian Science practitioner, and
• Any health care provider from whom the employer or the employer's group health plan's benefits manager will accept a medical certification to substantiate a claim for benefits.

To be qualified to fill out FMLA forms, medical professionals must be authorized to practice in the state and perform within the scope of their practice. This means that the provider must be authorized to diagnose and treat physical or mental health conditions.

What about doctors in a foreign country?

If an employee or an employee's family member is visiting another country, or a family member resides in another country, and a serious health condition develops, the employer must accept a medical certification from a health care provider who practices in that country. This includes second and third opinions.

If a medical certification from a foreign health care provider is not in English, the employee may be required to provide a written translation of the certification.

Key to remember: The FMLA regulations spell out which medical professionals can fill out certification forms.

Location, location, location

Question: I work for a motor carrier that has three terminals. One of our terminals is listed on the ELDT Training Provider Registry (TPR). The other two terminals are not listed on the TPR, but we do conduct ELDT behind-the-wheel instruction at these locations. One of my supervisors has stated that he doesn’t think this is allowed. Is this true?

Answer: Your supervisor is correct. Each location where ELDT occurs must be registered on the TPR.

Behind-the-wheel changes?

Question: I heard that the Federal Motor Carrier Safety Administration (FMCSA) has made changes to the ELDT behind-the-wheel requirements and now requires a student to have a set number of range and road hours. Is this true?

Answer: No, this is not true. The ELDT behind-the-wheel requirements have not changed. There isn’t a set number of instructional hours required for behind-the-wheel instruction (range or road).

The determination of proficiency is based on the instructor’s professional judgment with the student being able to successfully perform each required maneuver multiple times.

Do note that states are allowed to have additional requirements that go above and beyond the ELDT requirements. Check with your state for any additional requirements.

Documentation

Question: As an ELDT provider, are there any documentation requirements we must follow?

Answer: All training providers on the TPR must retain the following records (380.725):

• Self-certifications by all accepted applicants for behind-the-wheel training, attesting that they will comply with the regulations in Parts 40, 382, 383, and 391, as well as state and/or local laws related to alcohol and controlled substances testing, age, medical certification, licensing, and driver records;
• A copy of the driver-trainee’s commercial learner’s permit (CLP) or commercial driver's license (CDL);
• Instructor qualification documentation indicating driving and/or training experience, as applicable, for each instructor, and copies of CDLs and applicable endorsements held by behind-the-wheel instructors or theory instructors;
• The lesson plans for theory and behind-the-wheel (range and public road) training curricula; and
• Records of individual entry-level driver training assessments.

Training providers listed on the TPR must keep training-related records for at least three years from the date each required record is generated or received. If a record, such as a behind-the-wheel instructor’s CDL, has expired or has been canceled, the most recent, valid CDL should be kept. The records should be kept longer if required by state or local law.

Hazmat instructor requirements

Question: Does an ELDT hazmat endorsement instructor need to possess CDL with a hazmat endorsement.

Answer: Yes. All theory and behind-the-wheel instructors (including hazmat theory instructors) must have appropriate class of CDL including appropriate endorsement(s). They must also have a minimum of two years of experience:

• Driving a CMV requiring the CDL (including appropriate endorsement(s)), or
• As a behind-the-wheel CMV instructor.

Refresher training

Question: Is refresher or follow-up ELDT required?

Answer: No, the ELDT rule does not require refresher or follow-up instruction. ELDT is a one-time requirement.

Key to remember: Though the ELDT requirements are over three years old, issues and questions remain.

#1 Start here

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

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

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

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

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

#2 Train on these topics

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

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

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

Truck-related topics include the following:

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

Workplace-related topics are examples like these:

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

#3 Determine success

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

#4 End here

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

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

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

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

Action item

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

Key to remember

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

Example scenarios

An employee hurt his left arm and was told by the doctor not to use that arm for a week. The employee could still perform all routine job functions using only the right arm, but worked at a slower pace. OSHA said this would not be a restricted work case if the employee did, in fact, perform all routine job functions. A loss of productivity is not considered restricted work. If the employer could not accommodate the limitation and assigned light duty that temporarily eliminated a routine function, then it would be a restricted work incident.

In another case, an injured employee was given a lifting restriction of 20 pounds. That restriction would affect his job only if he rotated into a different position during an equipment breakdown, which happened once or twice per month. Again, OSHA said this was not a restricted work incident because routine functions are activities performed at least once per week. Since the restriction affected duties performed only once or twice a month, it did not affect a routine job function.

For related information, see our article, Can I get a second opinion? I want to delete an OSHA recordable.

Job descriptions

Employers often provide job descriptions to help doctors evaluate restrictions. However, the “essential functions” in a job description are not necessarily “routine functions” as defined by OSHA. For example, a job description might require the ability to lift 50 pounds, but if that task arises only twice per month, it’s not a routine function.

Generally, a doctor should describe restrictions rather than declaring that an employee “cannot work.” Employers can provide a job description and ask for recommendations regarding specific duties, but only the employer knows whether those duties are routine functions.

OSHA addressed that point in a Letter of Interpretation dated June 23, 2006. The letter stated, “Only the employer has the ultimate authority to restrict an employee’s work, so the definition is clear that, although a health care professional may recommend the restriction, the employer makes the final determination of whether or not the health care professional’s recommended restriction involves the employee’s routine functions.”

Similarly, only the employer can determine whether accommodations are possible, so employers may assign restrictions as well as days away. For example, if the employer determines that a restriction prevents an injured employee from performing a routine function, it must record the injury as a restricted work case. If the employer cannot accommodate the restriction and sends the employee home, it must record the time as days away. For related information, see our article, If an injured employee requests a day off, is that Days Away? 

Key to remember: Restrictions on job duties must affect routine functions to count as restricted work cases on the 300 Log, and the employer makes that determination.

What is the General Duty Clause?

Section 5(a)(1) of the Occupational Safety and Health Act, a law that took effect in 1970, requires employers to provide employees with a safe workplace. Specifically, section 5(a)(1), more commonly known as the General Duty Clause, mandates: “Each employer shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 

The General Duty Clause extends OSHA’s authority beyond the Code of Federal Regulations (CFRs) when a recognized workplace hazard exists or potentially exists. In fact, the agency often uses it to cite employers when there’s no specific regulation that applies to a recognized hazard in the workplace. Common examples where OSHA might use the General Duty Clause to cite include those for:

• Ergonomic hazards,
• Workplace violence hazards,
• Extreme heat hazards,
• Lack of safety training,
• Failure to have chemical leak detection equipment or alarms, and
• Unsafe or blocked access to valves/instruments necessary to an employee's job.

To use the General Duty Clause to cite an employer, OSHA must prove four elements:

• The employer failed to keep the workplace free of a hazard,
• The hazard was recognized,
• The hazard was causing or likely to cause death or serious physical harm, and
• There was a feasible and useful method to correct the hazard.

The case that spurred the proposal

In February 2010, an animal trainer was killed by an orca whale during an amusement park show. In a subsequent 2014 court case, OSHA relied on the General Duty Clause to prohibit the park from exposing its trainers to the recognized hazard of close contact with orca whales during live performances.

The D.C. Circuit Court of Appeals upheld the citation (in Case No. 12-1375), holding that the amusement park must reduce the hazard by requiring a barrier or minimum distance between trainers and orcas. Yet, one judge dissented, arguing that the General Duty Clause doesn’t authorize OSHA to regulate hazards arising from normal activities that are intrinsic to professional, athletic, or entertainment occupations.

The case did not reach the Supreme Court. However, in light of the issues raised in the court dissent and developments in administrative and constitutional law, OSHA reexamined its authority under the General Duty Clause.

The latest proposal

Now, the agency proposes that the following employment sectors must no longer be cited under Section 5(a)(1) for certain activities, but notes that its list is not exhaustive:

• Live entertainment and performing arts;
• Animal handling and performance;
• Professional and extreme sports;
• Motorsports and high-risk recreation;
• Tactical, defense, and combat simulation training; and
• Hazard-based media and journalism activities.

If the proposed rule is finalized, employers would NOT have to remove hazards arising from inherently risky employment activities, where:

• The activity is integral to the essential function of a professional or performance-based occupation;
• The hazard can’t be eliminated without fundamentally altering or prohibiting the activity; and
• The employer has taken reasonable hazard-control efforts (e.g., through engineering controls, administrative controls, or personal protective equipment) that don’t alter the nature of the activity to control the hazard.

The agency seeks input on 14 questions specific to the proposal. Interested parties may comment by September 2. Search for OSHA-2025-0041 at regulations.gov to read and enter public comments. OSHA will analyze the comments to shape an upcoming final rule.

Key to remember: Under a proposed rule, OSHA would no longer use the General Duty Clause to cite employers of “inherently risky professions.” The agency seeks comment by September 2 on specific questions related to the proposal.

What's the big deal?

To answer this question, let's look at a few recent examples of incidents involving devices containing lithium-ion batteries.

In June, a fire in New York led to injuries to one resident, four paramedics, and nine firefighters. The cause of the fire remains under investigation, but preliminary analysis suggests it was connected to five lithium-ion batteries, two of which were being charged at the residence.

In October 2023, a fire occurred at an electric vehicle battery manufacturer in Georgia . The incident led to several workers experiencing potentially permanent respiratory issues due to exposure to toxic fumes, including hydrofluoric acid vapors released during the lithium-ion battery fire. OSHA cited the company for five serious violations, proposing penalties exceeding $77,000.

What are lithium-ion batteries?

Lithium-ion batteries are everywhere—powering our phones, laptops, toothbrushes, power tools, and more. Some may say they're a technological marvel due to light weight, rechargeability, and ability to pack a lot of power into a small package.

In layman’s terms, they work like most other batteries. Lithium ions move back and forth between two components called the anode and cathode. This movement allows the battery to charge and discharge, powering all kinds of devices.

But while they're efficient and compact, lithium-ion batteries can also be prone to damage. Overcharging, poor maintenance, physical damage, or improper disposal can lead to serious concerns. Reinforcing the reasons for diligence when using these amazing devices.

What are the dangers?

Lithium-ion batteries are highly efficient and widely used for their reliability. When handled correctly, they are safe and effective. However, it's important for users to understand that improper use or damage can lead to serious risks of injury, including:

• Thermal runaway – a chain reaction where the battery overheats and can catch fire or explode; often caused by overcharging, damage, or high temperatures.
• Fire or explosion – happens when the battery is overheated, punctured, or short-circuited.
• Short circuits – can cause sparks, fires, or electric shock, especially if the battery is damaged or improperly handled.
• Physical damage – dropping, crushing, or puncturing a battery can make it unsafe to use or charge.
• Chemical leaks – damaged batteries can leak harmful chemicals that may burn skin or irritate lungs.
• Improper disposal – throwing batteries in the trash can lead to fires in trash bins, garbage trucks, or landfills.

What can we do to stay safe?

Lithium-ion batteries power our daily lives and using them safely is crucial. As incidents rise, regulatory organizations are taking notice. Recently the National Fire Protection Association (NFPA) has launched its “Charge into Safety” campaign to raise awareness about lithium-ion battery hazards. You can help prevent accidents by following these key safety tips:

• Use proper equipment - ensure you are using chargers and batteries that are certified for the specific device and are recommended by the manufacturer. Avoid using cheap, off-brand replacements.
• Store and charge safely - store batteries in a cool, dry place away from heat and sunlight. Heat is one of the biggest threats to lithium-ion battery safety. They should be kept in a cool, well-ventilated area, and away from sources of moisture which can cause corrosion or short circuits.
• Inspect often - check for swelling, leaks, or damage. Stop using damaged batteries immediately.
• Train workers - ensure anyone who handles these batteries understands how to use them safely, can recognize concerns, and knows how to respond to emergencies that may occur from use.
• Dispose correctly – dispose of them responsibly. Never throw lithium-ion batteries in the trash. Recycle batteries at approved centers.

Key to remember: Lithium-ion batteries power our modern world, but when not used responsibly, they can be dangerous. Stay safe by using certified equipment, charging and storing batteries and devices properly, inspecting them regularly, training users, and recycling responsibly.

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.