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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
SAFETY & COMPLIANCE NEWS
Keep up to date on the latest developments affecting OSHA, DOT, EPA, and DOL regulatory compliance.
FEATURED NEWS
2024-04-22T05:00:00Z
NewsGreenhouse GasesAir QualityAir EmissionsChange NoticesChange NoticeEnvironmental Protection Agency (EPA)EnvironmentalAir QualityFocus AreaEnglishAir ProgramsUSA
EPA Final Rule: Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles—Phase 3
The Environmental Protection Agency (EPA) is promulgating new greenhouse gas (GHG) emissions standards for model year (MY) 2032 and later heavy-duty highway vehicles that phase in starting as early MY 2027 for certain vehicle categories. The phase in revises certain MY 2027 GHG standards that were established previously under EPA's Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2 rule (“HD GHG Phase 2”). This document also updates discrete elements of the Averaging Banking and Trading program, including providing additional flexibilities for manufacturers to support the implementation of the Phase 3 program balanced by limiting the availability of certain advanced technology credits initially established under the HD GHG Phase 2 rule. EPA is also adding warranty requirements for batteries and other components of zero-emission vehicles and requiring customer-facing battery state-of-health monitors for plug-in hybrid and battery electric vehicles. In this action, we are also finalizing additional revisions, including clarifying and editorial amendments to certain highway heavy-duty vehicle provisions and certain test procedures for heavy-duty engines.
DATES: This final rule is effective on June 21, 2024, published in the Federal Register April 22, 2024, page 29440.
View final rule.
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RECENT INDUSTRY HIGHLIGHTS
2024-04-22T05:00:00Z
NewsElectronic Reporting of Injury and Illness RecordsSafety & HealthChange NoticesConstruction SafetyChange NoticeGeneral Industry SafetyAgriculture SafetyMaritime SafetyOccupational Safety and Health Administration (OSHA), DOLUSAEnglishFocus AreaInjury and Illness Recordkeeping
OSHA Letter of Interpretation Added
OSHA has added the following Memorandum to Letters of Interpretations:
Manufacturing (33/Durable)Personal ServicesEntertainmentProfessional ServicesManufacturing (31/Food/Textiles)RetailCompany ManagementHospitalityManufacturing (32/Non-Durable)UtilitiesWaste ManagementReal EstateWholesale DistributionCommercial ServicesConstructionFood ServicesGeneral ServicesHealthcareMiningTransportationCommunicationsAgricultureWarehousingPostal/Courier ServicesPublic AdministrationRepair ServicesFinancial/InsuranceEducationOccupational InjuriesInjury and Illness RecordkeepingForm 300AAccident ReportsExposure RecordkeepingIncidentsForm 300Industrial AccidentsForm 301Medical RecordkeepingOccupational DiseaseWork InjuriesOccupational IllnessesSMS TrialSMS EssentialSMS AdvancedIncident Center TrialIncident Center EssentialSMS PremiumSMS Trial Enterpriser29CFR190429 CFR 190429 CFR 1904 Recording and reporting occupational injuries and illnesses
2024-04-22T05:00:00Z
NewsEnforcement and Audits - OSHAElectronic Reporting of Injury and Illness RecordsIn-Depth ArticleInjury and Illness RecordkeepingEnglishIndustry NewsOSHA InspectionsSafety & HealthInjury and Illness RecordkeepingConstruction SafetyGeneral Industry SafetyAgriculture SafetyMaritime SafetyFocus AreaUSA
OSHA crackdown! Weekly reports to nab e-submission violators
Back-to-back OSHA enforcement memos reveal the agency’s push to catch e-submission violators! One memo instructs compliance officers to take time during each inspection to look for employer failures to submit data under 29 CFR 1904.41. The other memo explains that when OSHA opens an inspection, the agency will scan its database within a week to find out if you failed to submit your previous calendar year (CY) data.
OSHA is working to ensure full compliance with the E-submission Standard. The agency continues to use its analytic approach to fish out non-responders from the previous CY data collection. The data help the agency target establishments with exposure to serious hazards, OSHA argues. In addition, the agency’s providing public access to the data to help stakeholders spot unsafe conditions and work hazards. In fact, OSHA just posted the data late last week for FY 2023.
OSHA officers hunting for violations
An April 16th OSHA memo instructs compliance officers to refer to the database during all inspections to flag establishments that were required to submit Form 300A data under 1904.41(a)(1)-(2) but did not. OSHA Area Directors may also advise officers to perform a fullrecordkeeping audit where there’s evidence of potential systemic concerns.
OSHA Area Offices have access to a database containing each set of submitted Form 300A data. The “current” enforcement focus is on a failure to submit required 300A information. This is while the agency continues to review Form 300 and 301 submissions. However, the memo adds, “There may be circumstances where Area Offices are able to identify and appropriately cite employers for failing to submit Form 300 and 301 data.”
OSHA also scans its database
Over 375,000 locations submitted their data with the latest round. The trouble is OSHA estimates about 460,000 establishments fall under 1904.41. According to an April 18th memo, if the agency opens an inspection of your site, its Office of Statistical Analysis will check if CY 2023 Form 300A data is missing.
Each week OSHA runs a report of open inspections and generates a list of potential non-responders within that pool. The list is shared with OSHA Area Offices. Those offices will look to see if the listed establishments fall under 1904.41 AND have not yet submitted their data. For any valid match, the compliance officer involved in the case must inform the employer of its submission obligation. A citation may also be issued.
What about Form 300 and 301 data?
OSHA has begun collecting Form 300 and 301 data this year through the Injury Tracking Application (ITA). Yet, the agency’s April 18th memo maintains that, at this time, it will not create a list of potential non-responders with respect to the Form 300 and 301 data submission requirements.
Certain Form 300 and 301 data submitted through the ITA are publicly accessible by establishment on the OSHA ITA Data webpage. To date, OSHA has posted partial data from more than 850,000 Forms 300 and 301. Still, OSHA points out that it’s now taking additional steps to review the remaining data and protect worker privacy. That means it will provide more information to OSHA Area Offices and the public as these data become available.
OSHA only has a six-month window
Citations may only be issued during a six-month window after March 2, each year. For example, data for CY 2023 was due by March 2, 2024. Then, OSHA officers may only issue a citation for submission failures up until September 2, 2024. After that window, the statute of limitations runs out.
Who’s required to comply?
Here’s a summary of the requirements:
| Establishments with: | Must: | Regulation: |
| 250 or more employees and subject to OSHA’s recordkeeping regulations | Electronically submit to OSHA data from the OSHA Form 300A | 1904.41(a)(1)(ii) |
| 20-249 employees in certain higher-hazard industries listed at 29 CFR 1904 Subpart E Appendix A | Electronically submit to OSHA data from the OSHA Form 300A | 1904.41(a)(1)(i) |
| 100 or more employees in certain higher-hazard industries listed at 29 CFR 1904 Subpart E Appendix B | Electronically submit data from:
| 1904.41(a)(2) |
What if you missed the March 2nd deadline?
If you missed the deadline, submit your data electronically as soon as possible. The ITA will accept your data through the end of the CY (December 31), but don’t wait! There is no mechanism to submit or edit data for years prior to the previous year.
Key to remember
Two OSHA enforcement memos, dated April 16th and 18th, reveal the agency’s push to catch e-submission violators during and shortly after inspections. OSHA officers may only issue a citation for submission failures up until September 2 each year.
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2024-04-22T05:00:00Z
NewsFamily and Medical Leave Act (FMLA)Family and Medical Leave Act (FMLA)In-Depth ArticleInjury and Illness RecordkeepingHR ManagementEnglishUSAIndustry NewsSafety & HealthInjury and Illness RecordkeepingInjury and Illness Recording CriteriaGeneral Industry Safety300-A Annual SummaryOSHA RecordkeepingHR GeneralistCovered Employees for Injury and Illness RecordkeepingFocus AreaHuman Resources
FMLA confidentiality and OSHA recordkeeping
Sometimes, a situation involving the federal Family and Medical Leave Act (FMLA) and the federal Occupational Safety and Health Act (OSHA) intertwine. One such situation is if an employer receives an FMLA certification that indicates that the employee’s condition is work-related. Are employers obligated to use that information to record a condition on the OSHA 300 or 301 form?
No, according to the Occupational Safety and Health Review Commission (OSHRC) which reviews OSHA citations or penalties stemming from inspections, these events don’t need to be recorded on those forms.
Dust exposure, allergies, and poor air quality
A related case involved an employee who was exposed to dust at work, causing an allergic reaction. The employee asked for FMLA leave for the condition. The FMLA certification indicated that the employee had an FMLA serious health condition that was caused exclusively by her work environment.
The employee also complained about the workplace air quality to OSHA.
Investigation into OSHA recordkeeping
OSHA investigated and asked to see the company’s recordkeeping reports. The OSHA inspector noticed that the employer did not record the incident related to the employee’s condition on the OSHA logs. The company said that the FMLA’s confidentiality provisions precluded it from recording the incident on those OSHA reports.
OSHA felt that, because the FMLA certification indicated that the employee had a work-related illness, the employer had to record it on the OSHA logs.
Employers must keep medical info confidential, says the FMLA
The case went to the OSHRC, which ruled that the FMLA confidentiality provisions do preclude employers from reviewing FMLA certifications for OSHA recordkeeping purposes.
Employers are to record occupational injuries or illnesses if they know or should have known about an employee’s work-related illness. Having such information in an FMLA certification does not, however, give employers that knowledge, according to OSHRC.
The FMLA requires employers to keep medical information confidential and separate from the general personnel file. While there are limited exceptions, sharing information for OSHA recordkeeping is not one of the exceptions.
Secretary of Labor v. USPS, No. 08-1547, September 29, 2014.
Key to remember: Employers are not required to review FMLA certifications to determine if they are required to record the condition on the OSHA logs.
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2024-04-22T05:00:00Z
NewsIndustry NewsPhysical exam - Motor CarrierFleet SafetyFocus AreaIn-Depth ArticleUSAEnglishTransportationPhysical exam - Motor Carrier
When the road to DOT medical certification takes a detour - Exploring the impact of a driver taking opioids
An all-too-common occurrence is when a commercial motor vehicle (CMV) driver goes in for a medical recertification, and the driver is taking oxycodone (opioid) to treat a condition, such as a chronic back issue.
Carriers should know what happens after the Certified Medical Examiner (CME) becomes aware of opioid use.
The medical standard
A surprise may be that drivers who do not hold a commercial driver’s license (CDL), as well as CDL drivers, can fail their medical exam if they cannot meet the standard in section 391.41(b)(12) - Scheduled Drug Use.
A CME cannot qualify any driver who uses Schedule I drugs or substances, including marijuana.
However, if the prescription exception requirements are met, a CME may qualify an individual who uses an amphetamine or other prescribed drug or substance, such as an opioid, listed on Schedules II through V in 21 CFR 1308.12 through 1308.15.
The prescription exception
A drug or substance can be prescribed to a CMV driver by a properly licensed medical practitioner. The prescriber must:
- Be familiar with the individual’s medical history, and
- Confirm and advise the individual that the drug or substance will not adversely affect the individual’s ability to operate a commercial motor vehicle safely.
There are two ways for the CME to meet the prescription exception:
- Request documentation from a compliant prescriber, or
- Use the voluntary Driver Medication Form (MCSA-5895) with the driver’s consent.
Can the driver be drug tested?
The CME may request a non-Department of Transportation (DOT) drug test to aid in the physical qualification determination, including when signs exist indicating the individual may not have disclosed the use of a scheduled drug or substance.
Note: The use of a substance abuse professional (SAP), is not required as part of a non-Department of Transportation drug test.
No prescription
Suppose a driver admitted to taking opioids that were left after a prescription expired, but only when their shoulder bothered them at night so they could sleep.
A driver cannot be medically qualified and take Schedule II through V drugs without meeting the prescription exception. The driver will fail the exam if there is no prescription from a qualified prescriber. The new exam result nullifies the prior medical card, even if time remained until expiration. The driver remains medically unqualified until the medication issues are resolved.
The certification decision
Before making a decision, the examiner may request a non-DOT drug use assessment to determine either if improper use is occurring or the need for treatment. If there is no longer a valid medical reason for taking the drug, addiction may be the concern.
Examples of how CME’s may handle the certification decision:
- Add qualifiers to the medical examination report (MER) or ”long form,” such as the drug in question cannot be taken within a certain number of hours before operating a CMV, or
- Issue a short-duration certification of one year or less.
The final medical certification determination rests with the CME, who is familiar with the duties, responsibilities, and demands of being a commercial driver.
Keys to remember: Both CDL and non-CDL drivers are prohibited from taking Schedule I drugs. Drivers can only take Schedule II through V drugs with a prescription from a licensed provider when use does not cause safety concerns.
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2024-04-22T05:00:00Z
NewsIndustry NewsFleet SafetyHazmat SafetyHazmat: HighwayFocus AreaIn-Depth ArticleHazmat EnforcementEnglishTransportationUSA
With hazmat, the right book in the right place could save lives
The Emergency Response Guidebook (ERG) was developed to assist first responders at the scene of a hazardous materials transportation incident. It enables responders to quickly identify the hazmat and hazards involved and protect the general public during the initial response phase. The 2024 ERG is available now and can help you satisfy DOT's requirement that hazardous materials shipments be accompanied by emergency response information (49 CFR 172.602).
Understanding emergency response information (ERI)
Most hazmat shipments that require shipping papers must be accompanied by ERI that includes the following:
- Basic description and technical name of the hazmat,
- Immediate hazards to health,
- Risks of fire or explosion,
- Immediate precautions to be taken in the event of an incident,
- Immediate methods for handling fires,
- Initial methods for handling spills or leaks in the absence of fires, and
- Preliminary first aid measures.
The information must be complete, printed legibly, and in English.
There are several options to meet these requirements. The most common methods of providing the required ERI include:
- Listing it directly on the shipping papers,
- Keeping a copy of the ERG with the shipping papers,
- Keeping a copy of the appropriate guide page from an ERG with the shipping papers, and
- Keeping a copy of the Safety Data Sheet (SDS) with the shipping papers.
Even though there are multiple ways to provide the ERI, the ERG is preferred by enforcement officers and first responders because of their familiarity with it. Click here for required roadside inspection documentation.
Keep it accessible
The location of the shipping papers and ERI is just as important as the information contained in the documentation. If first responders are unable to locate the necessary documentation, valuable time could be lost, resulting in the additional loss of property and/or life. The HMR requires that the shipping paper must be readily recognizable and available to authorities in the event of an accident or incident.
The hazmat shipping paper must be clearly distinguished from other papers of any kind, either by distinctively tabbing it or having it appear first. When the driver is at the controls of the vehicle, the shipping paper and ERI must be within immediate reach while the driver is restrained by a seat belt, and either be readily visible to someone entering the driver’s compartment or be in a holder mounted on the inside of the driver’s door.
Compliance with ERI placement is critical when seconds count during a significant incident, so ensure that the ERI information is in the correct place for first responders.
Key to remember: Keeping a current ERG with hazardous materials shipping papers is the most common and easiest way for drivers to comply with the emergency response information requirements.
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.