J. J. Keller® Compliance Network

The EPA definition: “RCRA empty” explained

Under the Resource Conservation and Recovery Act (RCRA), a container that once held hazardous waste is only legally “empty” if it meets particular criteria outlined in 40 CFR 261.7. The first standard that must be satisfied is that all material has been removed from the container using normal means such as pouring, pumping, or aspirating. Secondly, no more than 2.5 centimeters or 1 inch of residue remains on the container's bottom or inner lining. Additionally, if the container holds less than 110 gallons, it is “empty” if no more than 3% of the total weight or volume exists. Of course, sometimes special circumstances require further evaluation. For example, a gas cylinder is not “empty” until the pressure has reduced to atmospheric levels, and acute hazardous waste containers must be triple rinsed with an appropriate solvent or cleaned by another approved method. If these conditions are not met, the container is still legally considered to contain hazardous waste, even if it feels empty.

The OSHA definition: “Empty” under the Hazard Communication Standard

While the EPA focuses on environmental disposal and waste management, OSHA’s concern with empty containers centers on worker safety—particularly the potential for exposure to hazardous residues or vapors. Under OSHA’s Hazard Communication Standard (29 CFR 1910.1200), a container that previously contained hazardous chemicals must retain its original hazard label until it is adequately cleaned or until the employer removes the label following proper decontamination procedures. For example, a drum labeled “Flammable” must keep this label even if it appears empty, as residual material or vapors may still pose a significant ignition or fire risk. Removing such labels prematurely could lead to workplace hazards and violations of OSHA regulations.

How to stay compliant

Employers must first clearly determine which rules apply to them: whether the container held hazardous materials governed by EPA regulations, hazardous chemicals subject to OSHA requirements, or both. Emptying procedures should be followed, including properly draining the container, performing triple-rinsing when required, and thoroughly documenting all decontamination activities.  Original hazard labels must be maintained on containers until they are thoroughly cleaned or reconditioned, as removing labels prematurely violates OSHA’s Hazard Communication Standard. Additionally, employers should provide employees with training on the proper handling, labeling, and disposal of containers and ensure they fully understand what constitutes an ‘empty’ container under federal standards. Finally, a detailed record of all rinsing, draining, and cleaning processes should be maintained to demonstrate compliance during EPA or state inspections.

Keys to remember: Employers should educate their teams, enforce proper cleaning procedures, and maintain compliance records to ensure they are staying compliant with “empty” container standards.

Qualified facilities

A qualified facility:

• Has a total aboveground oil storage capacity of 10,000 gallons or less, and
• Hasn’t had over the past three years either:
  • One oil discharge greater than 1,000 gallons, or
  • Two oil discharges greater than 42 gallons each within any 12-month period.

The SPCC rule identifies two types of qualified facilities:

• A Tier I qualified facility has no aboveground oil containers greater than 5,000 gallons.
• A Tier II qualified facility has an individual aboveground oil container greater than 5,000 gallons.

SPCC Tier Tip: EPA provides a fact sheet (Spill Prevention Control and Countermeasure (SPCC) Plan Qualified Facilities Applicability) to help facilities determine eligibility as a qualified facility and (if applicable) which tier applies.

What are the similarities?

Tier I and Tier II qualified facilities are subject to many of the same requirements for SPCC Plans, including basic requirements, certification, and updates to qualification changes.

What are the differences?

The primary difference between Tier I and Tier II facilities is the extent of the SPCC Plan. Additionally, Tier II facilities may employ certain alternative spill control methods.

Qualified facilities, whether Tier I or Tier II, benefit from the ability to self-certify their SPCC Plans. That’s something that can make owners and operators “tier” up with happiness.

Key to remember: Tier I and Tier II qualified facilities share many similarities under the SPCC rule, but knowing where the requirements differ is vital to maintaining compliance.

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.

What to do for states that do not connect to the National Registry by June 23, 2025

Drivers:

• Drivers licensed in states that have not implemented must continue to submit a paper copy of their Medical Examiner’s Certificate, MCSA-5876, to their State Driver’s Licensing Agencies (SDLA). Contact the appropriate SDLA if there are questions.
• Regardless of the state in which the examination is performed, the driver must receive an original/paper Medical Examiner’s Certificate, MCSA-5876.
• Drivers may print the informational page that FMCSA posted at the link below to show the examiner if they do not want to issue a medical certificate:
  • Guidance for states that have not transitioned

Certified medical examiners (CMEs):

• CMEs should verify the driver’s state of licensure prior to the exam against the list of states that have not implemented NRII. See the National Registry link below.
• If a driver is licensed in a state that has not yet implemented NRII, a CME must issue the driver a paper Medical Examiner’s Certificate, MCSA-5876 AND submit the examination result to the National Registry by midnight (local time) of the next calendar day.
• FMCSA will notify CMEs by e-mail once a state has implemented NRII.

State Driver Licensing Authorities (SDLAs):

• (SDLAs) that have not implemented National Registry II (NRII) must continue the manual process of requiring commercial learners permit (CLP)/commercial driver’s license (CDL) holders to submit a copy of their original/paper Medical Examiner’s Certificate, MCSA-5876, as proof of medical certification.
• If a driver fails to submit their Medical Examiner’s Certificate, MCSA-5876, to the SDLA, the State must continue to update the medical certification status of a driver as “not certified” within 10 calendar days of the driver's medical examiner's certificate or medical variance expiring, the medical variance being rescinded, or the medical examiner's certificate being voided by FMCSA. The State must then initiate downgrading procedures within 60 days of the driver’s record being marked as “not certified.”
• The list of states that have not yet implemented NRII can be found at the bottom of the following web page:

National Registry

Closing

Keys to remember: Follow the FMCSA guidance published to the NRII Learning Center Website (Link is above). If the state has not transitioned by June 23, 2025, continue to follow the manual update process.

Brake and annual inspectors

The regulations require that motor carriers only permit qualified personnel to inspect, service, and repair commercial motor vehicle (CMV) brakes and perform annual vehicle inspections.

Brake and annual inspectors must understand and be able to perform their tasks, and this is accomplished through experience, training, or both totaling at least one year. This experience and/or training is often accomplished through outside training programs, commercial garages, apprenticeship programs, and the like.

When the inspector is an employee, the carrier can easily verify the inspector’s background. However, it becomes an issue when the individual is employed by a third party (e.g., a commercial garage). The carrier should reach out to their service provider to ensure only qualified fleet maintenance personnel are working on their CMVs. In fact, motor carriers are instructed in 396.19(b) to retain evidence that a technician meets the annual inspector qualifications — even if the task is outsourced. As best practice, similar evidence should be requested and retained for brake inspectors who are not employees.

D & A service agents

DOT drug and alcohol (D & A) testing is a complex topic, so DOT requires specific training of most service agents. Agents must retain documentation on their employees’ training.

Drug specimen collectors and alcohol testing personnel must:

• Be trained in DOT regulations and collections procedures,
• Demonstrate proficiency through mock tests, and
• Take refresher training once every five years.

If a technician’s actions result in a canceled drug or alcohol test, they must have error-correction training to address the specific mistake.

Substance abuse professionals (SAPs) must:

• Have one of six counseling credentials,
• Participate in training related to safety-sensitive positions,
• Pass a comprehensive exam through an approved organization, and
• Take continuing education courses every three years.

Medical review officers (MROs) must:

• Be a licensed physician;
• Receive training related to collection and lab procedures under Part 40;
• Complete an examination administered by an approved MRO organization; and
• Complete requalification training, including another exam, at least every five years.

Motor carriers should ensure the above personnel are qualified, especially since any mistakes they make are attributed back to the motor carrier. Carriers are allowed to ask for documentation on training of these service providers.

Unlike other key players in DOT testing, consortium/third-party administrators (C/TPAs) have no mandatory training. But this should not deter the motor carrier from asking their C/TPA to provide information on employee training, experience, and continued education.

Key to remember: Even though motor carriers don’t oversee the training of their service providers, the regulations hold the motor carrier responsible for the agent’s knowledge and job performance.

Limitations

• Dangerous Goods Carried by Passengers or Crew (2.3)— Provisions for battery-powered mobility aids have been revised to include reference to the guidance on the end-to-end processes associated with the carriage of mobility aids.

Packing

The following packing instructions have been updated:

• 5.2.0.9 - Added a water capacity limit for non-refillable cylinders containing a flammable gas, limited to a water capacity not exceeding 1.25 L.
• PI 952 - Revised to include reference to "equipment."
• PI 954 - Clarified the rules for marking overpacks containing dry ice. The total net quantity of dry ice in the overpack must be marked on the outside of the overpack.

Packaging specifications and performance tests

• 6.0.3 - Clarified the requirements and formatting for UN specification marks on packages.

Documentation

• 8.1.6.9.2, Step 6 – Added a note to "reinforce that there is no requirement for the type, number and net quantity in inner packagings within the outer packaging of a combination packaging to be shown" on the shipping papers (Shippers Declaration for Dangerous Goods).

Radioactive materials

• 10.8.3.9.1—Added an additional example of the description for the first sequence of information on the Shipper's Declaration to address where a radioactive material has a subsidiary hazard, and the proper shipping name must be supplemented by the technical or chemical name.
• 10.8.6—Added two examples to show how radioactive materials with a subsidiary hazard should be described and how packages in an overpack should be shown.

Appendices

IATA has added a new appendix to the list of appendices in the DGR. Appendix H includes a list of changes IATA will make to the 2025 IATA DGR. IATA added Appendix H so that shippers and carriers have time to prepare for the substantial updates that are coming for 2025. Some of the changes include:

• Adding an exception for data loggers and cargo trackers with installed lithium batteries.
• Modifying the exception for COVID-19 vaccines to now apply to all pharmaceutical products.
• Adding a new classification for sodium ion batteries.
• Updating the list of dangerous goods and special provisions.
• Amending and adding several packing instructions.
• Revising the "lithium battery mark", which will be known as the "battery mark" in the future.

Making sure you are keeping up with these regulatory changes and preparing for future updates is extremely important if you want to avoid costly delays, fines, and lost revenue. Keep your hazmat employees up to speed and inform them of any changes they need to be aware of.

Key to Remember: IATA updates their DGR every year and changes to the 2024 IATA DGR become effective on January 1, 2024.

Key changes

Updates to classifications and exceptions include:

• The term "metal powders" now aligns with the UN classification.
• List of Category A pathogens now include monkey pox virus as Category A when in culture form only. The World Health Organization now references monkey pox virus as "mpox".
• Exception for COVID-19 vaccines has been expanded to cover all pharmaceutical products packed in a form ready to be administered. This also applies to those items in clinical trials.

New entries to the List of Dangerous Goods include:

• UN0514, Fire suppressant dispersing devices, Division 1.4S.
• UN3559, Fire suppressant dispersing devices, Class 9.
• UN3554, Gallium contained in manufactured articles.
• UN355, Sodium ion batteries.
• UN3552, Sodium ion batteries contained in equipment.
• UN3552, Sodium ion batteries packed in equipment.
• UN3556, Vehicle, lithium ion battery powered,
• UN3557, Vehicle, lithium metal battery powered.
• UN3558, Vehicle, sodium ion battery powered.

Changes and additions to special provisions include:

• A40: Expands the application of liquid desensitized explosives in Class 3.
• A69: Includes reference to gallium.
• A144: Clarifies the appropriate aircraft limitation is "passenger and cargo aircraft" when the special provision is applied.
• A228: Added to clarify the classification differences between sodium ion cells and batteries with an organic electrolyte and those batteries with an aqueous alkali electrolyte.
• A232: Added to distinguish between the classification of fire suppressant dispersing devices between Division 1.4S and Class 9.

Packing instructions with changes include:

• 5.2.0.8: Amended to enhance the protection of valves on cylinders and closed cryogenic receptacles, including references to design standards for shrouds, permanent protective attachments, and valves for non-refillable cylinders.
• PI 961: Now includes UN 3559, Fire suppressant dispersing devices, ensuring they are packed safely for transport.

Finally, Appendix A includes several changes to the defined terms in the Glossary, ensuring clarity and up-to-date terminology.

The updates listed above are not the only changes to the 2025 IATA DGR. However, they do show IATA's commitment to enhancing safety and efficiency in the transport of dangerous goods. Staying informed and compliant with these regulations will ensure smooth and secure operations in 2025.

Key to remember: If you are shipping dangerous goods by air, make sure you are using the appropriate IATA DGR, so you can stay in compliance with changing requirements.

Identify near miss/near hits

A near miss, or “near hit,” is defined by OSHA as an incident “in which a worker might have been hurt if the circumstances had been slightly different.” In other words, you got lucky that something worse didn’t happen!

Studies have shown that for every fatal or serious injury, there were likely reports of more minor injuries, near hits, and a foundation of workplace hazards or behavior that should have been addressed.

Here are some examples of near hits to give you an idea of what to look for:

• Unsecured material falls, but the material didn’t strike anyone.
• A worker trips over an unmarked step and falls without injury.
• A worker hops from a piece of heavy equipment to avoid the broken steps but doesn’t get hurt.
• A worker’s shirt sleeve gets caught in a conveyor but tears before their arm is pulled into the machine.
• A worker gets their foot caught in a large gap in scaffold flooring, but they didn’t fall off the scaffolding.
• A forklift narrowly escapes hitting a pedestrian when rounding a hidden intersection.
• An equipment operator almost starts a piece of machinery being maintained due to missing LOTO devices but notices the electrician working on the equipment.
• A small section of soil falls into a trench before workers enter to perform work.
• An elevated load almost strikes a worker when the load began to sway in the wind.
• Hot welding slag lands on a rag used to clean flammable materials but didn’t ignite.

Are these types of scenarios being reported in your workplace? If not, why not? If so, what is being done about it? Are investigations being carried out to determine what corrective actions can be taken to prevent an incident from occurring the next time, or when luck runs out?

Near hit reporting is a crucial component of a proactive safety and risk management program. These close calls may not cause injuries, or property or equipment damage, but they are precursors to potential workplace hazards and risks. Workers often overlook these incidents due to their seemingly harmless nature, but when reported and acted upon, they can serve as early intervention points to prevent serious accidents involving property damage, serious injuries, or even fatalities.

Leverage reporting

Near hits (or near misses) are valuable learning opportunities, and smart employers know how to use them to improve safety and prevent future incidents. Here are some examples of how employers can encourage reporting:

• Explain the direct correlation between near hits and actual incidents;
• Demonstrate how near hit reporting helps fix issues before injuries can occur;
• Define expectations that all unsafe conditions, behaviors, or perceived risks must be reported;
• Provide training that focuses on hazard identification and implementation of controls;
• Perform near hit investigations as you would any other incident. Identifying root causes and contributing factors are essential for incident prevention.
• Analyze near hit reporting compared to incident rates to evaluate safety performance improvements;
• Encourage employees to participate in safety committees to help identify hazards and prevent incidents; and
• Implement a safety recognition program that rewards employees for prioritizing proactive safety behaviors.

Workers must develop the habit of reporting near hits just as they do incidents. Likewise, employers must be diligent in enforcing near hit reporting as well as investigating each report. Think of these close calls like playing the lottery — you keep playing to win — the more you “let them ride” and ignore them, the closer you get to hitting the “jackpot.” Only in this case, it’s one you don’t want to win!

Key to remember: Identifying, reporting, and investigating near hits and taking corrective action to eliminate them are essential for avoiding serious incidents and fatalities in the future.

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!

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.

Counting the days

Whether employers count a holiday as FMLA leave will depend on whether the employee is taking leave in full weeks, or on an intermittent or reduced schedule basis.

If an employee is taking FMLA leave continuously, the fact that the holiday occurs within that week has no effect; employers would count the entire week as FMLA leave.

If, however, an employee is using FMLA leave intermittently or on a reduced schedule (in small chunks), employers don’t count the holiday as FMLA leave unless the employee was otherwise scheduled to work on the holiday and didn’t because of an FMLA-qualifying reason.

Putting it into practice

If, for example, Jo Employee will be on FMLA leave for the first full three weeks of July, the employer would count the entire week during which Independence Day falls as FMLA leave.

If, on the other hand, Jo is on FMLA leave only on the Monday and Tuesday before Independence Day, works Wednesday, and is not scheduled to work Friday of that week, the employer would count only Monday and Tuesday as FMLA leave.

If Jo also needed Friday off that week for an FMLA-qualifying reason, and were scheduled to work on that day, the employer would also count Friday as FMLA leave.

Keeping the records straight

Employers must keep records of the dates on which employees take FMLA leave. When employees take small chunks of FMLA leave, employers must record the minutes or hours of leave employees take. Employers must identify the leave as FMLA leave in the records. They may not include leave required under state law or an employer plan that isn’t also covered by FMLA.

Employers can find such information from time records, requests for leave, etc., making it beneficial, then, to know how to track FMLA leave when a holiday is involved.

Happy Independence Day!

Key to remember: Whether employers should count time off as FMLA leave around a holiday will depend upon some specifics, such as whether the employee takes leave in full weeks or not.

What would you do?

So, if Joe Employee were to ask to bring in his emotional support squirrel, what do you do?

Treat the request as you would any accommodation request. You would do the same if Joe asked to bring in a service dog. Look at the particulars of the situation, including the employee’s job, the work environment, and so forth. Talk to the employee. This is all part of the ADA’s interactive process.

Assuming it’s possible to modify the no-animal policy, you may (but are not required to) ask for medical documentation if the disability and need for accommodation are not obvious or already verified. You have to consider only those accommodations that are needed because of a disability. Documentation might include a detailed description of how the animal would help the employee in performing job tasks and how the animal is trained to behave in the workplace.

Once the need for accommodation is established, the next step is to talk with the employee about whether the animal is trained to be in a work environment and if it will be under the employee’s control at all times. You do not have to provide any accommodation that poses an undue hardship. One factor in determining undue hardship is whether the accommodation will be unduly disruptive to other employees or to the ability to conduct business.

Finally, possibly the best way to determine whether to permit the employee to bring an animal to work is to allow it on a trial basis and see if it works. You might want to make a written agreement with the employee that there will be a trial period, how long it will last, and what factors might end the trial period early. If, for example, the animal shows any sign of aggression or if the employee cannot keep the animal quiet or under control, you will immediately end the trial period and deny the request.

If you do not have a no-animal policy and allow other employees to bring in animals, then you should allow employees with disabilities to bring in animals without going through the accommodation process.

Why the delay?

The agency has not commented on the delay. However, the commission currently lacks a quorum (i.e., minimum number of members) which restricts its ability to take certain actions.

At full strength, the commission has five members. It needs three to have a quorum, and currently has two, Acting Chair Andrea Lucas and Commissioner Kalpana Kotagal.

The commission indicates that it remains open for business and continues to enforce federal antidiscrimination laws. Employees can still file discrimination charges and the agency can investigate them.

However, a quorum is needed for the agency to vote on rulemaking, issue new policies, or rescind guidance documents.

A third member, Brittany Bull Panuccio, was nominated to serve on the commission in May. The nomination has been received by the Senate and referred to the committee, but no further action has been taken.

The agency has not commented on whether a quorum is needed for it to revise the EEOC poster. It is possible, however, that the lack of a quorum is contributing to the delay in the release of the revised poster.

What will change on the Know Your Rights poster?

The poster is being revised to bring its wording in line with two executive orders:

• The “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” executive order does not recognize gender identity as a synonym for sex. The poster notes that the protection against sex discrimination includes gender identity.
• The “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” executive order revokes Executive Order 11246. The section about Executive Order 11246 no longer needs to be posted.

What should employers do now?

The Know Your Rights: Workplace Discrimination is Illegal posting is required for employers with 15 or more employees and federal contractors. Covered employers should continue to display the most recent version of the poster, which has a June 27, 2023, revision date. They should be prepared to display the new version after it is released.

Key to Remember: There’s no timeline for the release of an updated Know Your Rights posting, but the EEOC still indicates that it is on the way. Covered employers should be ready to update their posters.

Service dog request

Alisha worked for a school district. Her military service left her with some disabilities, for which she had a service dog. On August 30, 2022, Alisha asked her employer to allow her service dog, Inde, to accompany her to work.

After meeting on September 16, the employer asked Alisha for additional information to determine what specific job functions were impacted by her disabilities and whether there were alternative accommodations. Alisha provided a letter signed by her Veterans Affairs (VA) treating provider, who confirmed that Inde was key to Alisha’s mental and physical health recovery.

The employer, however, said the letter wasn’t sufficient because the provider wasn’t a board-certified medical doctor. Alisha thus provided a letter from her treating psychiatrist, which again confirmed that Alisha needed Inde at work.

On November 11, the employer asked Alisha to undergo an independent medical exam, and she did. After that, the employer still balked, arguing whether a service dog was the only accommodation. Alisha then provided three letters, including correspondence from two other physicians, confirming limitations, and urging that the employer approve the request.

On January 6, a frustrated Alisha filed a claim that the employer failed to accommodate her disability.

Four days later, on January 10, Alisha underwent a VA-led examination that assessed her physical disabilities. Two doctors separately confirmed that Alisha needed Inde in all settings, including the workplace.

The employer said that the documents didn’t provide any information regarding potential alternative accommodations.

On February 1, Alisha filed a lawsuit against her employer. On February 17, the employer granted her accommodation request, but it was too late.

Delay was a failure to accommodate

The court agreed with Alisha that the employer’s six-month delay in granting her accommodation constituted a failure to accommodate her disability. It indicated that employer ADA obligations, including the interactive process, are triggered when an employee asks for an accommodation.

Employers that drag their feet could force employees to work under suboptimal conditions to endure an endless interactive process. They could simply document an employee’s failures and use the employee’s difficulties as an excuse to terminate them.

Don’t drag out the interactive process

Disability laws and applicable case laws don’t require employers to move with maximum speed to complete this process and preempt any possible concerns. But employers that delay in providing reasonable accommodation may show a lack of good faith in the interactive process.

The employer’s insistence that Alisha repeatedly give it information that confirmed her disabilities and need for accommodation could be seen as unreasonable.

Strife v. Aldine Independent School District, Fifth Circuit Court of Appeals, No. 24-20269, May 16, 2025.

Key to remember: While employers don’t have to go through the ADA’s interactive process at light speed, if they drag their feet, they can risk a violation and court case.

#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.

Other safety tips

Tornado safety involves three phases: Preparing in advance, Staying safe during the storm, and Staying safe after the storm.

Employees should prepare a plan and an emergency kit, monitor weather conditions during thunderstorms, and know the best places to shelter wherever they work.

Employers should prepare a business continuity plan for dealing with the aftermath, from cleaning up the site to resuming business operations.

During a tornado warning, employees should remain in a shelter until given an all-clear signal. At a fixed worksite, this may come from an employer announcement. At other locations, employees may need to monitor conditions on their phone or radio.

After the storm, employees may need a way to communicate if they are trapped or injured. They should also watch for hazards such as downed power lines, gas leaks, building damage, or debris.

Key to remember: Tornadoes can happen at any time, but Spring is most active, and employers should prepare to protect workers.

Combustible dust explosion

One night in May 2017, workers at a Wisconsin dry corn milling facility smelled smoke in the mill. While investigating the smoke, several heard an explosion and saw fire coming from piping on mill equipment. The workers scrambled to evacuate as the fire spread through the equipment and interconnected dust collection systems. Dust collection equipment exploded, and secondary explosions subsequently occurred throughout the facility.

The CSB determined the cause of the dust explosions was the ignition of combustible corn dust inside process equipment. This transitioned to multiple explosions. The board’s report determined that OSHA regulations for combustible dust operations are insufficient. Therefore, the report recommends that the agency publish a comprehensive regulation on combustible dust with the following elements:

• Hazard recognition,
• Dust hazard analysis,
• Management of change,
• Incident investigation,
• Engineering controls,
• Building design,
• Fugitive dust management,
• Operating procedures,
• Process safety information,
• Investigation report,
• External audit management,
• Worker training,
• Emergency response, and
• Personal protective equipment (PPE).

The report also highlights that emergency plans need to instruct workers when and how to trigger evacuations. The workers spent at least 30 minutes trying to locate the source of smoke, but no one attempted to shut down the mill or evacuate until they observed fire.

Asphyxiating gas release

In January 2021, liquid nitrogen overflowed from a freezer located inside a food plant in Georgia. The release happened while maintenance workers were troubleshooting issues with the freezer. Once released, the liquid nitrogen vaporized filling the room and killing the two workers. An hour later another worker spotted a five-foot vapor cloud filling the room and notified management. During an evacuation, other workers investigated the room or attempted rescue. Unfortunately, four more workers were killed, and three others were injured by asphyxiation.

The CSB’s report concluded that a tube was bent during maintenance in the freezer room. The board also said that the severity of the incident was worsened by the company’s inadequate emergency preparedness. The final CSB report emphasizes five safety issues:

• Single point of failure,
• Atmospheric monitoring and alarm systems,
• Emergency preparedness and response,
• Process safety management, and
• Product stewardship.

However, the report also suggests that OSHA issue a new regulation on cryogenic asphyxiants that covers:

• Design, construction, and installation of equipment;
• Atmospheric monitoring for indoor equipment;
• Emergency shutdown;
• Worker training;
• Emergency planning;
• Process hazard analysis;
• Management of change; and
• Other process safety elements.

Flammable vapor explosion

In April 2021, a mixture of flammable naphtha solvent vapors and resin liquid escaped through the seal of a closed manway of an operating kettle. This created a flammable vapor cloud that spread throughout the Ohio facility. Within minutes the vapor cloud found an ignition source, causing a huge explosion and a fire that burned for roughly 11 hours. The explosion shook nearby homes and caused an estimated $90 million in damage to the site. One employee was killed and eight others transported to area hospitals with third-degree burns and crushed or broken bones.

The latest CSB report highlights three safety issues:

• Mechanical integrity of low-pressure vessels,
• A hierarchy of controls, and
• Emergency preparedness training.

On the night of the incident, evacuation alarms and worker training specific to the hazards of the chemicals present in the resin manufacturing area could have prevented casualties. These precautions were missing in the incident, the board explains.

The CSB report warns that effective emergency preparedness is crucial in the event of a flammable vapor cloud release. This should, among other things, include:

Two more CSB reports anticipated

Key to remember

Packed with safety recommendations, three chemical incident investigation reports from the CSB urge OSHA to issue two new regulations.

Identify near miss/near hits

A near miss, or “near hit,” is defined by OSHA as an incident “in which a worker might have been hurt if the circumstances had been slightly different.” In other words, you got lucky that something worse didn’t happen! Studies have shown that for every fatal or serious injury, there were likely reports of more minor injuries, near hits, and a foundation of workplace hazards or behavior that should have been addressed.

Here are some examples of near hits to give you an idea of what to look for:

• Unsecured material falls, but the material didn’t strike anyone.
• A worker trips over an unmarked step and falls without injury.
• A worker hops from a piece of heavy equipment to avoid the broken steps but doesn’t get hurt.
• A worker’s shirt sleeve gets caught in a conveyor but tears before their arm is pulled into the machine.
• A worker gets their foot caught in a large gap in scaffold flooring, but they didn’t fall off the scaffolding.
• A forklift narrowly escapes hitting a pedestrian when rounding a hidden intersection.
• An equipment operator almost starts a piece of machinery being maintained due to missing LOTO devices but notices the electrician working on the equipment.
• A small section of soil falls into a trench before workers enter to perform work.
• An elevated load almost strikes a worker when the load began to sway in the wind.
• Hot welding slag lands on a rag used to clean flammable materials but didn’t ignite.

Are these types of scenarios being reported in your workplace? If not, why not? If so, what is being done about it? Are investigations being carried out to determine what corrective actions can be taken to prevent an incident from occurring the next time, or when luck runs out?

Near hit reporting is a crucial component of a proactive safety and risk management program. These close calls may not cause injuries, or property or equipment damage, but they are precursors to potential workplace hazards and risks. Workers often overlook these incidents due to their seemingly harmless nature, but when reported and acted upon, they can serve as early intervention points to prevent serious accidents involving property damage, serious injuries, or even fatalities.

Leverage reporting

Near hits (or near misses) are valuable learning opportunities, and smart employers know how to use them to improve safety and prevent future incidents. Here are some examples of how employers can encourage reporting:

• Explain the direct correlation between near hits and actual incidents;
• Demonstrate how near hit reporting helps fix issues before injuries can occur;
• Define expectations that all unsafe conditions, behaviors, or perceived risks must be reported;
• Provide training that focuses on hazard identification and implementation of controls;
• Perform near hit investigations as you would any other incident. Identifying root causes and contributing factors are essential for incident prevention.
• Analyze near hit reporting compared to incident rates to evaluate safety performance improvements;
• Encourage employees to participate in safety committees to help identify hazards and prevent incidents; and
• Implement a safety recognition program that rewards employees for prioritizing proactive safety behaviors.

Workers must develop the habit of reporting near hits just as they do incidents. Likewise, employers must be diligent in enforcing near hit reporting as well as investigating each report. Think of these close calls like playing the lottery — you keep playing to win — the more you “let them ride” and ignore them, the closer you get to hitting the “jackpot.” Only in this case, it’s one you don’t want to win!

Key to remember: Identifying, reporting, and investigating near hits and taking corrective action to eliminate them are essential for avoiding serious incidents and fatalities in the future.

What do we know?

OMB’s website reveals these two proposals are under review:

• Updates to Respiratory Protection Standard Medical Evaluation Requirements, and
• Interpretation of the General Duty Clause: Limitation for Inherently Risky Professional Activities.

OSHA’s fiscal year 2026 budget request makes no mention of the two actions, and neither item appeared in the Fall 2024 Regulatory Agenda. The good news is OSHA is anticipated to publish its Spring 2025 Agenda in the coming days. This may shed greater light on the newest rulemakings.

In fact, it is unclear if OSHA’s latest rulemaking will be regulatory or deregulatory. What we do know is both proposals are listed as “not economically significant,” meaning they will not have an impact on the economy of $100 million or more and will not adversely affect any sector of the economy.

The new proposals could come up quickly! OMB review typically takes 90 to 120 days, which means the proposed rules could be published in the Federal Register as soon as September or October. We’ll keep you posted!