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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
2024-04-19T05:00:00Z
NewsIndustry NewsEnglishFleet SafetyFines and penalties - Motor CarrierFocus AreaIn-Depth ArticleEnforcement - DOTTransportationUSA
Mishandled mail could cost you after a DOT audit
Two motor carriers recently learned the hard way why great care should be taken with government mail following a DOT audit or investigation.
The companies — one a bus operator based in Texas and the other a freight hauler from Illinois — both mishandled the Notices of Claim that the Federal Motor Carrier Safety Administration (FMCSA) mailed them last summer.
A Notice of Claim (NOC) is a letter notifying a company that they’ve been fined for violations. In this case:
- The bus company was fined $14,330 for using a driver before completing a pre-employment drug test and failing to put in place a systematic inspection and maintenance program.
- The freight company was fined $3,460 for using a driver who did not hold the proper type of license.
In both cases, the FMCSA sent the NOCs by certified mail shortly after performing an audit of the companies’ safety programs.
3 options, 30 days
When a company receives a NOC, it can respond in one of three ways:
- Pay the fine,
- Contest the fine and ask for a hearing, or
- Admit to the violations but ask for binding arbitration as a way to reduce the amount.
Whichever path a company chooses, it must respond in writing within 30 days after the NOC is received. If the company fails to respond, it waives its right to contest the fine and will owe the full amount.
Lost in the mail
In this case, both motor carriers wanted to contest their fines but neither responded within 30 days, and neither had an excuse that held any merit with the judges overseeing the cases:
- The Illinois company didn’t respond until 49 days later and said the NOC letter was “either lost or misplaced by the mail receptionist” in its building. The judge wrote that the company “had an obligation to ensure that a timely reply to the Notice of Claim was served and cannot excuse its failure to meet the deadline by shifting blame to its mail receptionist.”
- The Texas company’s reply came 47 days after it received the NOC, arguing that it never received the FMCSA’s letter. However, the FMCSA had written proof from the Postal Service that the letter was delivered and was signed for by the same person who later received notice that the fine had been finalized.
In each case (both finalized this spring), the judge declared that the entire fine was “due and payable immediately” because the motor carrier had defaulted when it failed to reply to the NOC.
Watch the mail
If you’re ever the target of an FMCSA audit or investigation and violations are found, be on the lookout for an important letter from the agency. It will typically be sent to your principal place of business and require a signature from whoever receives it.
Once you do receive an NOC, the 30-day clock starts ticking. If you want to contest the fine or seek arbitration (hint: it’s a good idea), be sure to respond in writing before the 30-day deadline!
Key to remember: After a DOT audit, be sure to watch for critical letters or communications from the agency, because missing something important could mean paying the full amount of any fine that’s levied against you.
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RECENT INDUSTRY HIGHLIGHTS
2024-04-19T05:00:00Z
NewsIndustry NewsToxic Substances Control Act - EPAToxic Substance ControlEnvironmental Protection Agency (EPA)EnvironmentalIn-Depth ArticleEnglishFocus AreaChemical Data ReportingUSA
Chemical Data Reporting: 5 tips for a winning report
It’s time for that special event that happens once every four years, often testing the endurance of the participants who’ve spent the prior years preparing for this very moment. No, it’s not the Summer Olympics, though that’s a great guess. It’s the Chemical Data Report!
Under the Toxic Substances Control ACT (TSCA), the Environmental Protection Agency’s (EPA’s) Chemical Data Reporting (CDR) rule requires manufacturers (including importers) to report information on the production and use of chemicals in commerce if they meet certain production volume thresholds at any one site. The submission period for the 2024 report runs from June 1 to September 30, 2024.
Use these tips to help you complete a Chemical Data Report worthy of a gold medal.
Tip #1: Verify that your facility is covered.
The TSCA Chemical Substance Inventory (TSCA Inventory) lists the covered chemical substances. Generally, the production volume threshold is 25,000 pounds or more of a chemical substance at a site. However, a reduced reporting threshold (2,500 pounds) applies to chemical substances subject to:
- A rule proposed or promulgated under TSCA Sections 5(a)(2), 5(b)(4), or 6;
- An order issued under TSCA Sections 4, 5(e), or 5(f); or
- A relief granted under a civil action under TSCA Sections 5 or 7.
Further, certain full and partial exemptions apply to facilities based on the:
- Chemical substances,
- Size of the business, and/or
- Activities conducted.
To confirm whether your facility must report:
- Check the most recent nonconfidential TSCA Inventory, which you can download from EPA’s website or access through its electronic CDR reporting tool (e-CDRweb);
- Search the Substance Registry Services (SRS), accessible through e-CDRweb, to determine if any of the facility’s chemical substances are subject to TSCA actions;
- Search the SRS for chemical substances on the confidential portion of the inventory (by TSCA Accession Numbers or generic chemical names); and
- Examine the regulations at 40 CFR Part 711 to determine whether your facility qualifies for any reporting exemptions.
Tip #2: If a chemical substance is reportable for one year, you must report its production volume for all years.
The CDR rule requires facilities to report the total annual production volume of covered chemical substances for each calendar year since the last principal reporting year.
In other words, if a chemical substance at your facility meets or exceeds the corresponding reporting threshold during any calendar year covered by the report, you must include the total annual production volume of that chemical for every covered calendar year.
For example, you must list on the 2024 report the production volumes of every reportable chemical substance for 2020, 2021, 2022, and 2023.
Tip #3: The CDR form is site-specific, not chemical-specific.
All CDR data must be reported electronically on Form U (EPA Form 7740-8) through e-CDRweb on EPA’s Central Data Exchange (CDX) system. Reporting is site-specific, so if your organization has multiple sites with reportable chemicals, you must submit a Form U for each site.
Keep in mind that you submit only one form per site, so all reportable chemical substances at a specific site are listed on the same Form U. You may have to submit multiple forms only if you have more than one site covered by the CDR rule.
Tip #4: Register for the right CDX user role.
To submit a Chemical Data Report, you must first register with the CDX system and be approved by EPA. Plus, you must register the name of the organization on whose behalf you’re submitting a Form U. If you’re already registered on CDX, you can add the CDR reporting flow to your current registration.
Because each type of user role has varying permissions, it’s essential to register for the right one. User roles include:
- Primary Authorized Officials,
- Secondary Authorized Officials,
- Primary Support,
- Secondary Support,
- Primary Agent/Consultant, and
- Secondary Agent/Consultant.
Only Primary Authorized Officials may submit initial Chemical Data Reports. So, if you’re the one who will submit Form U, confirm that you’re registered as a Primary Authorized Official.
Tip #5: You’re not done when you submit the report.
The CDR rule requires organizations to keep records of all CDR information reported on Form U to EPA for at least five years (711.25). The five-year timeline begins on the last day of the submission period.
Additionally, you may have to amend Form U after submitting the initial report. This can apply if:
- You find errors or omissions during a self-audit of the Chemical Data Report,
- You receive newly available information,
- You believe the organization may have violated reporting requirements, or
- EPA finds errors or omissions (in which case, the agency will likely send a letter requiring you to make corrections within a specific time frame).
Key to remember: The Chemical Data Report can be a major undertaking, but with these tips, you can cross the finish line with a report worthy of a gold medal.
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2024-04-18T05:00:00Z
NewsTrainingTrainingConfined SpacesConfined Space HazardsConfined SpacesPermit-Required Confined SpacesHazmat SafetyTraining & DevelopmentOccupational Safety and Health Administration (OSHA), DOLIn-Depth ArticleUSAEnglishIndustry NewsSafety & HealthConstruction SafetyGeneral Industry SafetyAgriculture SafetyMaritime SafetyFocus AreaMine SafetyTransportationHuman Resources
Stand up to Confined Spaces during the National Safety Stand-Down
Want to learn what other companies are doing to prevent confined space fatalities? Or are you interested in helping prevent one of the approximate 127 annual confined space fatalities? Then read on!
Any employer interested in preventing workplace hazards can participate in the May 6-10, 2024, National Safety Stand-Down. Although this year’s topic is preventing Falls in Construction, employers can address confined space hazards as well with this initiative.
What’s a Safety Stand-Down?
Safety stand-downs give employers an opportunity to break from the normal routine and focus on various safety issues, like confined spaces. It’s a voluntary, dedicated time to communicate with employees directly about identifying and reducing hazards that may cause serious injuries and fatalities.
All Employers could benefit by participating in the National Safety Stand-Down include but most certainly:
- Construction;
- Farming and agriculture;
- Plumbing, pipefitting, and steam fitting;
- Freight delivery and truck cleaning; and
- Maintenance and repair.
How can I participate in the National Safety Stand-Down?
Employers are free to plan stand-down activities that apply to their workplace and that best fits with their schedules and operational commitments. In the case of confined spaces, employers can engage workers to perform confined space assessments and inspections, develop entry procedures and rescue plans, or ensure signage is accurate and updated. In other words, whatever may be needed to identify and remediate hazards or encourage open communications with workers about confined space safety.
This is also a great time to provide refresher training. A great starting point could be reminding workers of the differences between confined spaces and permit-required confined spaces. Additionally, you can have discussions with workers about the common types of deadly confined spaces and how to protect themselves.
Here are some talking points:
1. OSHA defines a confined space in 1910.146 as a space that:
- Is large enough for workers to enter and perform certain jobs,
- Has limited or restricted means of entry or exit, and
- Is not designed for continuous employee occupancy.
2. Permit-required confined spaces (permit spaces) are confined spaces that have one or more of the following characteristics:
- Contains or has a potential to contain a hazardous atmosphere;
- Contains a material that has the potential for engulfing an entrant;
- Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross-section; or
- Contains any other recognized serious safety or health hazard.
3. The most common types of confined spaces involved in occupational deaths include:
- Tanks, bins, and vats;
- Silos and grain hoppers;
- Septic and water tanks;
- Oil and fuel tanks;
- Trash bins and dumpsters;
- Tanker trucks;
- Crawl spaces; and
- Wells.
4. Worker protections in and around confined spaces include:
- Reviewing and understanding operating manuals, safety data sheets, and previous injury and illness records;
- Visually inspecting confined spaces for falling object, chemical, and noise hazards;
- Identifying hazardous energy sources;
- Implementing standards and guidance from regulatory agencies and consensus standards;
- Selecting and implementing the most effective hazard control measures;
- Reporting incidents or exposures so root causes can be addressed; and
- Evaluating procedures and control measures regularly to ensure effectiveness.
Key to Remember: Employers should set time aside during the week of May 6-10, 2024, to join the National Safety Stand-Down and stand up to confined space hazards.
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HealthcareUtilitiesReal EstateManufacturing (33/Durable)RetailHospitalityPersonal ServicesManufacturing (31/Food/Textiles)AgricultureConstructionProfessional ServicesCommercial ServicesRepair ServicesEntertainmentMiningPublic AdministrationWholesale DistributionEducationFood ServicesWaste ManagementTransportationManufacturing (32/Non-Durable)Entry TeamPermit SpaceConverging WallsIDLHEngulfmentAsphyxiationProhibited ConditionAuthorized EntrantPermit-Required Confined SpaceCompetent PersonNon-Entry RescueConfined SpaceEntry SupervisorSelf-RescueHazardous AtmosphereAtmospheric HazardsRetrieval SystemOxygen Deficient AtmospheresOxygen Enriched AtmospheresNon-Permit Confined SpaceAsphyxiating AtmospheresRescue Service OperationsAttendantr29CFR1910.14629 CFR 1910.14629 CFR 1910.146 Permit-required confined spaces.
2024-04-18T05:00:00Z
NewsIndustry NewsEnglishHuman ResourcesHR GeneralistLeaveIn-Depth ArticleFocus AreaHR ManagementLeaveUSADisabilities and ADADisabilities and ADAReasonable Accommodations
Leave as an accommodation and no-fault attendance points don’t mix
When a court opinion begins with “This case illustrates one reason why the Americans with Disabilities Act (ADA) exists,” you know you’re in trouble.
Employees must miss work sometimes. When that leave is for valid reasons, like a disability, employers must ensure their disciplinary steps aren’t an ADA violation. Employers with no-fault attendance policies should not apply attendance points to such ADA-related absences, one employer learned.
Employee collapsed at work
Brandon was a solid employee who had a chronic disease that caused kidney stones to develop. About once every two years, he developed a large kidney stone that required surgical removal.
The company had a policy that counted any unexcused absence, tardy, or leave early as an attendance point. The company fired employees who accrued seven points in a year. Employees could accrue just one point without applying for an ADA accommodation. Ty, Brandon’s manager, was not aware that leave was available for those with an ADA disability.
Brandon had one accrued attendance point before he accrued four points because of his condition. When his doctor recommended that he take about a week off, he instead returned to work to avoid any further points.
The day he returned, however, Brandon collapsed at work in excruciating pain and was transported by ambulance to the hospital. The general manager rode with Brandon, where he learned of Brandon’s condition. The company assessed only one attendance point for the two days Brandon was absent.
Seventh attendance point meant termination
Brandon’s doctor told him he needed surgery to remove a large stone. Ty warned Brandon that a seventh point would lead to termination.
Because Brandon needed surgeries to remove the stone, he:
- Missed more work,
- Accrued seven points, and
- Was fired.
Ty told him he could reapply in 60 days. Instead, a lawsuit ensued.
Employer didn’t try to find a solution
In court, the company claimed that, because Brandon did not provide a return-to-work date, he requested unlimited leave, which is not a reasonable accommodation. The company did not, however, ask when Brandon could return to work.
In ruling for Brandon, the court didn’t buy the company’s argument. The history showed that Brandon returned to work promptly. The court also said that the company failed to engage in the ADA’s interactive process (i.e., conversation with an employee to find a possible reasonable accommodation), and it chose to remain in the dark about when Brandon could return to work.
EEOC v. Keystone RV Company, Northern District of Indiana, No. 3:22-CV-831, March 27, 2024.
Key to remember: Time off can be a reasonable accommodation under the ADA, and employers should not apply attendance points to such time off.
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2024-04-18T05:00:00Z
NewsIndustry NewsIndustry NewsFleet SafetyEnglishFederal Motor Carrier Safety Administration (FMCSA), DOTCMV Parts and MaintenanceFocus AreaEnforcement - DOTRoadside InspectionsVehicle maintenanceTransportationUSA
Proposed tune-up for inspection report requirements
The Commercial Vehicle Safety Alliance (CVSA) recently petitioned the Federal Motor Carrier Safety Administration (FMCSA) to amend inspection-report requirements for motor carriers and intermodal equipment providers.
The current regulation
Under the current regulations in 49 CFR 396.9(d)(3), carriers must return roadside inspection reports to the issuing state agency within 15 days, certifying that all necessary repairs have been made. The issue with this, according to CVSA, is that the states are filing away the forms without taking actions that could actually improve safety.
CVSA feels that the requirement is an “unnecessary administrative burden on both the carrier and the state agencies,” and in response has petitioned for change.
The petition
CVSA is asking FMCSA to remove the requirement that motor carriers must return inspection reports to the agency listed on the form. In place of that requirement, CVSA proposes adding a statement to the rule saying that the issuing agency has the option to require carriers to return the form within 15 days of the inspection.
CVSA is not proposing any change to the requirement that carriers “retain a copy at the motor carrier's principal place of business, at the intermodal equipment provider's principal place of business, or where the vehicle is housed for 12 months from the date of the inspection.”
CVSA acknowledges that while it has found that most jurisdictions do not use the signed forms in any way, this amendment still allows jurisdictions the flexibility to require carriers to return forms if the jurisdiction desires it.
CVSA is a nonprofit association of local, state, provincial, territorial, and federal commercial motor vehicle safety officials and industry representatives.
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TransportationDriver InspectionsMaintenance InspectionsSteering Wheel/MechanismRearview/Rear-Vison MirrorsVehicle MaintenanceEmergency EquipmentPost-Trip InspectionsEn Route InspectionsPre-Trip InspectionsTiresWheels and RimsCoupling DevicesHornReflectorsPost Trip InspectionsTrailer Brake ConnectionsPre Trip InspectionsParking/Hand BrakeService BrakesVehicle Lights and LampsWindshield WipersSMS Trial EnterpriseSMS PremiumEncompass EssentialSMS TrialSMS EssentialEncompass AdvancedSMS AdvancedEncompass Premiumr49CFR396.949 CFR 396.949 CFR 396.9 Inspection of motor vehicles and intermodal equipment in operation.
2024-04-18T05:00:00Z
NewsIndustry NewsGender DiscriminationIndustry NewsDiscriminationTitle VII (The Civil Rights Act of 1964)Protected classesHR GeneralistUSAHR ManagementEnglishFocus AreaTalent Management & RecruitingHuman Resources
Mandatory job transfers could be discrimination, Supreme Court ruled
The U.S. Supreme Court unanimously ruled on April 17 that making an employee transfer to a similar job, even at the same rate of pay, could be job discrimination.
Thus, the unanimous decision makes it easier for employees to sue employers for discrimination when such measures are taken.
Case background
The case involved a female police officer’s claim that she was transferred to a different position because of her sex, which is in violation of Title VII of the Civil Rights Act of 1964. While the pay for job the officer was transferred to was equal to that of her previous job, it was a less prestigious position with different hours and responsibilities.
Lower federal courts sided with the city that employed the police officer in the gender discrimination and retaliation claims, with the 8th U.S. Circuit Court of Appeals saying she had not suffered a “materially significant” disadvantage.
Two justices’ opinions
Justice Elena Kagan wrote in the Supreme Court’s opinion that, “Although an employee must show some harm from a forced transfer, she need not show that the injury satisfies a significance test.”
Title VII’s text, Kagan wrote, nowhere establishes that higher bar.
While in agreement with the decision, Justice Brett Kavanaugh wrote a separate opinion stating that “the Court’s new some-harm requirement appears to be a relatively low bar.” His writing indicated he would have preferred describing the requirement as, ‘some additional harm.’
“Importantly, the Court emphasizes that ‘some harm’ is less than significant harm, serious harm, or substantial harm,” Kavanaugh wrote. “Therefore, anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some additional harm—whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.
“So even though I respectfully disagree with the Court’s new some-harm requirement, I expect that the Court’s approach and my preferred approach will land in the same place and lead to the same result in 99 out of 100 discriminatory transfer cases, if not in all 100.”
What the ruling means for employers
The Court’s ruling is a reminder to employers that employment decisions should never be made for discriminatory reasons, i.e., based on an employee’s membership in a protected class. Employment decisions — hiring, promoting, transferring, etc. — must be made based on objective factors such as skills, qualifications, and experience.
When an employer wants to transfer an employee to a different position, it is always a best practice to document the business reasons for doing so. Such documentation could show a court that a job transfer was not done for discriminatory reasons.
Key to remember: The Supreme Court ruled that the harm from a forced job transfer need not be severe to be considered discrimination under Title VII.
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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.