What types of vehicles require the driver to possess a CDL?
The CDL classes are as follows (§383.91): Class A: Any combination of vehicles with a gross combination weight rating (GCWR) of 26,001 pounds or more provided the gross vehicle weight rating (GVWR) of the vehicle(s) being towed is more than 10,000 pounds.
Class B: Any single vehicle with a GVWR of 26,001 pounds or more, or any such vehicle towing a vehicle not more than 10,000 pounds GVWR.
Class C: Any single vehicle, or combination of vehicles, that meets neither the definition of Class A nor that of Class B, but that either is:
Designed to transport 16 or more passengers including the driver, or
Used in the transportation of hazardous materials as defined in §383.5.
How do I get an air brake endorsement added to my CDL?
An air brake endorsement does not exist for drivers who possess a CDL. An air brake restriction is placed on a driver’s CDL if the driver either fails the air brake component of the knowledge test or performs the skills test in a vehicle that is not equipped with a full air brake system. Without a full air brake system, an air brake restriction will be placed on the driver's CDL. Who is subject to the new entry-level driver training rule (ELDT)?
As of February 7, 2020, the new ELDT rule applies to anyone:
Applying for his or her first CDL,
Upgrading his or her current CDL (from Class B to Class A), or
Obtaining a new passenger, school bus, or hazmat endorsement
This rule does not apply to individuals who had a valid and current CDL and the appropriate endorsement(s) before February 7, 2020.
I am looking for information on the Training Provider Registry (TPR) that is part of the entry-level driver training rule. I have searched FMCSA's website and other sites and cannot find this registry.
FMCSA is in the process of developing the TPR. The agency expects it to be available via their website in late 2019. Where in the FMCSRs is driver training covered? How often do I need to train ― once a quarter, twice a year?
Section 390.3(e) of the FMCSRs states that drivers and employees must be instructed in and comply with the regulations, but it does not include specifics as to delivery, documentation, frequency, or time. That is left to the motor carrier's discretion. I would like to know if we are considered interstate or intrastate.
When determining whether transportation is interstate or intrastate in nature we look at two things; first the actual movement of the driver, vehicle and its contents, and second the intent and movement of the shipment. Interstate commerce includes:
Crossing state lines,
Traveling over the border into and/or from Canada or Mexico, and
Traveling between two places within a state, but the cargo is part of a trip that began or will end in another
state or foreign country.
Intrastate commerce includes:
Not crossing state lines,
Not traveling over the border into and/or from Canada or Mexico, and
Traveling between two places within a state, and the cargo is not part of a trip that began or will end in another state or foreign country.
The definitions (interstate commerce and intrastate commerce) are located in §390.5 of the FMCSRs.
Where in the FMCSRs is driver training covered? How often do I need to train ― once a quarter, twice a year?
Section 390.3(e) of the FMCSRs states that drivers and employees must be instructed in and comply with the regulations, but it does not include specifics as to delivery, documentation, frequency, or time. That is left to the motor carrier's discretion. How can drivers use annotation of their logs to help clear up any potential confusion in certain situations?
Any instance where an exception to the regulations is being used or when a driver goes over an hours-of-service limit, should be accompanied by an annotation (comment). Details in the annotation can assist enforcement in determining whether the driver had a valid reason for using an exception or the reason for a violation (which may not be a true violation due to the use of the exception). If there are no annotations, the enforcement officer has nothing but a regulation violation to review. If a driver is waiting to be unloaded, can he log off-duty?
Drivers are allowed to log off duty if they are allowed to rest in or on their truck. The key is that the driver must be free to pursue activities of his or her own choosing and be relieved of all responsibilities. This also can mean that the driver is generally able to leave the vehicle or premises where it is parked versus having to attend to the vehicle to move it at a moment’s notice. On the other hand, if the driver must stay with the vehicle on the customer’s property and be available to work when needed due to the carrier’s or customer’s instructions, and the driver is not allowed to get into the sleeper berth, the driver must log on duty. When can a driver use the “Yard Move” option on an ELD?
A driver can use the YARD MOVE option when the driver is on property that is not considered a “highway” (gates or signs which prohibit public travel) in accordance with §390.5 below:
“Highway" means any road, street, or way, whether on public or private property, open to public travel. “Open to public travel” means that the road section is available, except during scheduled periods, extreme weather or emergency conditions, passable by four-wheel standard passenger cars, and open to the general public for use without restrictive gates, prohibitive signs, or regulation other than restrictions based on size, weight, or class of registration. Toll plazas of public toll roads are not considered restrictive gates.”
A driver or a mechanic can use the “yard move” option as long as they have an ELD account. If there is no account for the individual, the person would have to move the truck on a yard as an “unassigned event” and it would require a back-office associate to annotate the event with details as to why it was not assigned and what the move entailed.
If a customer’s yard is closed to public travel as defined above, the driver can use the “yard move” option. Many docks are at locations that are stores and the public is not prohibited from traveling near the docks at the rear of the store. The “yard move” option would not be allowed in that situation.
A carrier should have a company policy that clarifies when the ELD-related options (see §395.28) of “yard move” and “personal use” can be used if they are authorized by the carrier. When can a driver use the 150 air-mile short-haul exception to logging and what are the details of this exception?
The 150 air-mile short-haul exception to logging is only for drivers of non-CDL vehicles and is authorized by the regulation found in §395.1(e)(2), which allows a time record be kept in lieu of a record of duty status/log if all conditions are met as noted below.
§395.1(e)(2) states that a non-CDL vehicle driver is exempt from the log requirements in §395.8 and the 14-hour rule in §395.3(a)(2) if:
The driver operates within a 150 air-mile radius of the location where the driver reports to and is released from work, i.e., the normal work reporting location; and
The driver returns to the normal work reporting location at the end of each duty tour; and
The driver does not drive after the 14th hour after coming on duty on 5 days of any period of 7 consecutive days, or after the 16th hour after coming on duty on 2 days of any period of 7 consecutive days; and
The motor carrier maintains for 6 months accurate records showing the time the driver reports for duty each day, the total number of hours the driver is on duty each day, and the time the driver is released from duty each day (and the total time for the preceding 7 days for drivers used for the first time or intermittently, per §395.8(j)(2)).
Drivers using this exception remain subject to the 10-hour off-duty rule, the 11-hour driving rule, and the 60/70-hour limits in §395.3 and any 7-consecutive-day period may be reset with a qualifying 34-hour restart.
The days on which the driver does not qualify for the short-haul exemption (example - outside the 150 air-mile radius), the driver must complete a record of duty status/log in accordance with §395.8, take the minimum 30-minute rest break within the last break of 30 minutes or more, and maintain supporting documents in accordance with §395.11.
Note: 150 air miles are equivalent to 172.6 statute miles. What FMCSA regulations apply to a charitable organization, such as a church or the scouts, that operates a bus to events but does not collect money from passengers?
A church that leases or has purchased a bus for the private transportation of their group, that doesn’t collect compensation in any manner for group activity trips is considered a non-business private motor carrier of passengers (PMCP) if they provide private transportation that is NOT in the furtherance of a commercial purpose. This means that no compensation can be received directly from passengers for the cost of the transportation or indirectly as part of a group event package.
Non-business PMCPs are subject to the same regulations and exceptions as for-hire carriers, but are exempt from many paperwork requirements. Specifically, these operations are exempt from:
Insurance requirements (Part 387);
Driver minimum-age restrictions;
The need for drivers to provide a list of violations from the past 12 months;
Employment applications, driving-record checks, previous-employer inquiries, and annual reviews (Part 391, Subpart C);
The requirement for drivers to be medically examined and carry a medical exam certificate (but drivers are not exempt from the minimum physical qualifications in Sec. 391.41(b));
Driver qualification and investigation files;
Records of duty status (logs);
Maintenance records as required under Sec. 396.3(b); and
Daily post-trip vehicle inspection reports.
If a charitable organization collects money for transportation from passengers is considered to be collecting direct compensation which makes the operation a for-hire carrier subject to all applicable FMCSRs.
What is the “8 in 30” exemption from logging on ELDs?
An ELD is not required for any driver that logs on grid logs 8 or less times in any rolling 30-day period, not a 30-day period as defined by the carrier or a calendar month. Enforcement auditors will count 30 days back from today and count the number of paper grid logs in that period. However, at the roadside, the driver is not required to have proof of their prior 30 days' of logs or exempt log/timecard recordkeeping documents with them in the truck.
If the officer has a concern about a driver claiming to be exempt from using an ELD due to the “8 in 30” exception, the enforcement officer will have to contact the carrier’s office which would likely occur at a date/time after the roadside inspection. Am I required to pay the Unified Carrier Registration (UCR)?
Private property carriers, for-hire passenger, property, and exempt commodity carriers, freight forwarders, leasing companies, and brokers engaged in interstate commerce are subject to annual UCR registration and fees.
Carriers from Canada or Mexico operating in the United States are also subject to UCR registration. How are the Unified Carrier Registration (UCR) fees determined?
The UCR fee structure is a bracket system, with the per-carrier fees based on the number of vehicles the motor carrier operates. UCR fees are not imposed per vehicle.
Brokers, leasing companies, and freight forwarders (who do not operate any commercial motor vehicles) are subject to the lowest fee bracket. However, if these entities are also motor carriers, they are subject to the fee according to the number of vehicles they operate in interstate commerce. For Unified Carrier Registration (UCR), does a motor carrier have to pay for all trucks it has, or only the trucks that run interstate?
A motor carrier pays only for the vehicles that operate in interstate commerce. Vehicles that are intrastate-only may be removed from a carrier’s vehicle count provided that the vehicles do not and will not operate in interstate commerce and the vehicles are not registered under the International Registration Plan (IRP). We are a U.S.-based carrier that will be operating into Canada. Do we need to comply with Canada’s hours of service regulations?
Yes. U.S-based carriers are subject to Canada’s hours of service regulations and must respect Canada’s rules. Many of Canada’s driving and on-duty limits are more lenient than the U.S. regulations. However, there are additional items required on a daily log that aren’t required by U.S. regulations. The additional items Canada requires on the log includes the driver’s name printed, the driver’s cycle declaration, starting and ending odometer reading, carrier’s principal place of business address, and personal use starting and ending odometer reading (if applicable). Also, if a U.S. driver entering Canada doesn’t have a log for the day immediately preceding the day on which he/she will be entering Canada, he/she must provide in the “Remarks” section a record of all off-duty and on-duty hours for the previous 14 days. These items apply to paper or electronic logs. What is the definition of yard moves, e.g. a driver is on duty, backs in to hook to a trailer and then moves 300 yards to load his trailer; the driver moves less than 5 mph and less than 1 mile? The driver does not want to show driving time.
A Yard move is an off-highway movement as highway is defined in §390.5:
“Any road, street, or way, whether on public or private property, open to public travel. “Open to public travel” means that the road section is available, except during scheduled periods, extreme weather or emergency conditions, passable by four-wheel standard passenger cars, and open to the general public for use without restrictive gates, prohibitive signs, or regulation…”
When operating off-highway and using the special category yard move, the device will record the movement as on-duty not driving.
As described, if not off-highway, the movement is technically considered driving regardless of whether the ELD is calibrated to record it as such or not. There is no distance allowance in the technical standards. The mandate requires that the device records movement as driving no later than 5 m.p.h. Driving in §395.2 is defined as, “all time spent at the driving controls of a commercial motor vehicle in operation.” We have a load going to California with the steer over by 300lbs (12,300). We are informing our driver by our research the maximum weight on the steer in California is 12,500. How can we be sure?
California allows up to 20,000 pounds per axle, however the maximum weight on the steer axle is limited by the load limit set by the tire manufacturer. If both steer tires are rated at 6,250 pounds, the 12,500 pounds could be on the steers. If on a trailer and using a sliding 5th wheel, sliding back one notch would bring the steers close to 12,000 pounds (rescale to verify). What are the procedures for terminating a lease with an owner?
There following are the Federal regulations regarding the terming of a lease:
§376.11(e), “The lease shall clearly specify which party is responsible for removing identification devices from the equipment upon the termination of the lease and when and how these devices, other than those painted directly on the equipment, will be returned to the carrier. The lease shall clearly specify the manner in which a receipt will be given to the authorized carrier by the equipment owner when the latter retakes possession of the equipment upon termination of the lease agreement, if a receipt is required at all by the lease.
§376.11(f), “In addition, the lease may provide that, upon termination of the lease agreement, as a condition precedent to payment, the lessor shall remove all identification devices of the authorized carrier and, except in the case of identification painted directly on equipment, return them to the carrier. If the identification device has been lost or stolen, a letter certifying its removal will satisfy this requirement. Until this requirement is complied with, the carrier may withhold final payment.”
§376.11(k)(6), “The conditions the lessor must fulfill in order to have the escrow fund returned. At the time of the return of the escrow fund, the authorized carrier may deduct monies for those obligations incurred by the lessor which have been previously specified in the lease and shall provide a final accounting to the lessor of all such final deductions made to the escrow fund. The lease shall further specify that in no event shall the escrow fund be returned later than 45 days from the date of termination.”
Other considerations are adhered to as spelled out in the lease.
Can two corporate entities with different FEINs operate under one USDOT number? Or must each FEIN have its own USDOT number?
The USDOT number has a one to one relationship to the FEIN. They cannot be shared by multiple entities any more than an FEIN can be shared – even if the entities are related, e.g. sister or parent-child corporations. USDOT numbers are used to track compliance to an individual carrier. As such, the USDOT number must be unique to the entity. We are a company registered as an interstate hazmat carrier. If I changed my registration to intrastate would they benefit me any as far as being under as much scrutiny at the federal level?
The primary difference is that the state would be responsible to conduct any audits or investigations rather than the FMCSA. Roadside inspection data would still be collected. The operation still needs to be registered with PHMSA, adhere to the Hazardous Material Regulations (HMRs) and the Federal Motor Carrier Safety Regulations (FMCSRs) – or state equivalent. The operation would then be prohibited from accepting any work outside of the state of domicile or engage in any interstate movements, e.g. last or first mile movements that originated or are bound out of state. For Unified Carrier Registration (UCR), does a motor carrier have to pay for all trucks it has, or only the trucks that run interstate?
A motor carrier pays only for the vehicles that operate in interstate commerce. Vehicles that are intrastate-only may be removed from a carrier’s vehicle count provided that the vehicles do not and will not operate in interstate commerce and the vehicles are not registered under the International Registration Plan (IRP). Are IFTA and IRP the same?
No, they are not the same, but they are often mentioned together for a few reasons. Both are base-state registration agreements with the same parameters for qualification, and the distance records a motor carrier keeps are often shared between the two programs. But, it is important to understand that they are two very different, and separate, programs. IFTA covers the carrier for fuel taxes, while IRP covers the registration (plates) of the vehicle. How long must a motor carrier retain IFTA and IRP records?
We recommended that carriers keep IRP records for 6½ years. Under IRP, carriers must keep any records for their registration application, plus records for the three prior registration-reporting periods. In effect, this time period can be up to 6½ years, depending on when the carrier renews registration. Under IFTA, carriers must retain the records used for the quarterly tax return for four years from the return due date or filing date, whichever is later, plus any time period included as a result of waivers or jeopardy assessments. What is the difference between interstate and intrastate commerce?
This is a very common question. It is vital that a motor carrier define itself correctly in order to determine whether state or federal regulations are applicable. If you guess wrong, you will find yourself with compliance issues. Interstate commerce is the movement of a shipment or service across state or international borders, or the intent to continue a movement within a state that originated from another state or country. In practical terms, you could still be considered interstate commerce even if you never cross the state line, depending upon the origin and destination of the shipment or service. Intrastate commerce is the movement that originates in a single state, moves in that state only and delivers in that originating state. I was told that DVIRs need to be kept for one year. Is that true?
No, in most cases. Under §396.11, completed drivers’ vehicle inspection reports (DVIRs) must be kept for at least three months. However, §396.3 requires motor carriers to keep a record of repairs for 12 months. Therefore, if a DVIR is your only documentation that a defect was found and repaired, then it should be kept for 12 months. In most cases, a DVIR that records a defect will result in additional documentation for the repair, such as a work order, parts invoice/receipt, etc., in which case the DVIR can be discarded after three months (as long as the additional documents are kept for 12 months). Some of our drivers are always on the road. When and how can we notify them they’ve been selected for a random test? Can we use email?
The rules don’t specify how to notify drivers, but email or text would be problematic if there is no way to confirm (and document) whether or when the driver received the notice. Once notified, these drivers must proceed to the testing site immediately (or “as soon as possible” if they’re doing on-duty work other than driving), and you must be able to confirm that they did that. For that reason, a phone call is preferred.
Don’t spill the beans too soon, however. Before telling the driver about the test, chat about what they’re doing, so you can confirm that they’re available to “drop everything and go” for testing. If they’re tied up, you should wait for another time or day, as long as the test is done within that testing cycle.
As for when to notify a driver, a drug test can be ordered at any time but an alcohol test is allowed only while, just before, or just after a driver performs safety-sensitive functions. Your telephone chat with the driver should tell you if those conditions are met. We have short-haul truck drivers who do not use logs. Some of them have second jobs, including overnight 8-hour shifts. Do I need a record of those hours?
Yes. All time spent working for a motor carrier and all compensated time spent working for a non-motor carrier is considered “on duty” time, even for drivers who do not use logs. This is based on the definition of “on-duty time” in §395.2. A driver who uses the 100- or 150-air-mile exception in §395.1(e) is still required to have 10 consecutive hours off duty between shifts. Therefore, you do need to have documentation of the hours spent working a second job, and documentation confirming that the driver had 10 hours off before going back to driving for you. Can drivers cross state lines and still use the short-haul exception if they stay within the 100/150-air-mile radius?
Yes, drivers can cross state lines and still use the 100- or 150-air-mile exception in §395.1(e), as long as they follow the terms of the exception. The short-haul exceptions are federal rules for drivers engaged in interstate commerce (across state lines). Is it a violation if a driver uses the cab or sleeper-berth area for transporting items that will not fit in the trailer?
Section 393.76 has specifications for sleeper berths but does not say how they can be used. There are no rules prohibiting cargo or other items within the cab or sleeper berth. Section 392.9, however, does say that a commercial motor vehicle may only be operated if:
The vehicle’s cargo is properly distributed and adequately secured as specified in Part 393,
All “equipment” used in the vehicle’s operation is secured, and
The vehicle’s cargo or “any other object” does not obscure the driver’s view ahead or to the right or left sides …, interfere with the free movement of his/her arms or legs, prevent his/her free and ready access to accessories required for emergencies, or prevent the free and ready exit of any person from the commercial motor vehicle’s cab or driver’s compartment.”
Also be aware that during a roadside inspection, loose items in the cab could be seen as a safety hazard. Whenever possible, cargo should be secured in the trailer or another area designed for cargo.
Who is subject to DOT drug and alcohol testing?
A driver operating a commercial motor vehicle (CMV) requiring a commercial driver’s license (CDL) is subject to 49 CFR Part 382. However, holding a CDL by itself is not an automatic qualifier for DOT testing. Someone who holds a CDL for personal reasons, but will never be called upon to operate a CDL vehicle is not in a safety-sensitive positions despite the licensing. Are non-CDL drivers operating vehicles weighing 10,001-26,000 pounds with no placardable quantities of hazmat subject to medical qualifications?
Parts 390-399, which includes the medical card in Part 391, applies to the operation of a commercial motor vehicle as defined in §390.5:
Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle—
Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or
Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C.
As you can see, both CDL and non-CDL vehicle types are represented in this definition. For intrastate-only drivers, the state may have a different definition for applicability.
Is a motor vehicle record (MVR) requires after each driver physical?
For non-CDL drivers, there is no requirement to request an MVR following a medical exam. The state is not tracking the medical status, and it is not tied to licensing.
On the other hand, an interstate driver who holds a CDL and is required to have a medical card must provide the state of licensing with his or her medical card soon after the exam, so the state can add the information the to the MVR. The CDL holder’s license is tied to the medical status. The driver must do this after each driver physical. The employer must request an MVR within 15 days of each exam showing this most recent physical was added to the record. Can a former DOT-regulated employer charge for a safety performance history inquiry?
Yes. The Federal Motor Carrier Safety Administration (FMCSA) allows a carrier or its service provider to charge a fee for the inquiry. However, the former employer or its service provider cannot without the data pending payment. They must release the information within 30 days of receiving the request regardless. Are the placarding requirements the same for Table 1 and Table 2 materials?
No. Table 1 materials must be placarded when transporting any amount regardless of the size of the package. Table 2 materials must be placarded when transported in a bulk package or in a non-bulk package and the aggregate gross weight of all Table 2 materials meets or exceeds 1,001 pounds. What materials make up placarding Table 1 and Table 2?
Table 1 consists of Divisions 1.1, 1.2, 1.3 explosive materials, 2.3 poison gas, 4.3 dangerous when wet, 5.2 organic peroxide (Type B, liquid or solid, temperature controlled), 6.1 poison inhalation hazard, and Class 7 radioactive yellow III label only. Table 2 consists of Divisions 1.4, 1.5, 1.6 explosive materials, 2.1 flammable gas, 2.2 no-flammable gas, 4.1 flammable solid, 4.2 spontaneously combustible, 5.1 oxidizer, 5.2 organic peroxide (other than Type B, liquid or solid, temperature controlled), 6.1 poison (other than poison inhalation hazard), and Class 3 flammable liquid, 8 corrosive, 9 miscellaneous. Is it a requirement for all vehicles that transport hazardous materials to have a copy of the Emergency Response Guidebook (ERG)?
No, regardless of whether your load requires placarding, drivers are not required to have a copy of the ERG.
The Hazardous Materials Regulations (HMR) require emergency response information to accompany most shipments of hazardous materials. The emergency response information can be provided in several ways:
It can be entered on the hazmat shipping papers;
It can be provided in another document, other than the shipping paper, that includes the basic description (and technical name if appropriate) of the hazardous material, such as a Safety Data Sheet; or
It can be provided in a separate document, other than the shipping paper, that cross-references the description of the hazardous material on the shipping paper, such as the ERG.
Although not the original intended use for the ERG, keeping an ERG with the hazmat shipping papers is an easy way for a driver to comply with the emergency response information requirements in the HMR. While it is not mandatory for drivers to use an ERG to comply, many err on the side of caution and carry an ERG in their vehicles to cover any hazmat they may transport.
Are all hazardous materials shippers and carriers required to register with the Pipeline and Hazardous Materials Safety Administration (PHMSA)?
No, only shippers and carriers that meet certain requirements must register. PHMSA registration requirements apply to anyone that offers for transport, or transports in foreign, interstate or intrastate commerce, any of the following:
Any highway route-controlled quantity of a Class 7 (radioactive) material;
More than 55 pounds of a Division 1.1, 1.2, or 1.3 (explosive) material;
More than 1.06 quarts per package of a material poisonous by inhalation (as defined by Section 171.8, that meets the criteria for “hazard zone A” as specified in Sections 173.116(a) or173.133(a));
A shipment (offered or loaded at one loading facility using one transport vehicle) in a bulk packaging having a capacity equal to or greater than 3,500 gallons for liquids or gases, or more than 468 cubic feet for solids;
A shipment (offered or loaded at one loading facility using one transport vehicle) in other than a bulk packaging of 5,000 pounds gross weight or more of one class of hazardous material for which placarding is required; or
A quantity of hazardous materials that requires placards, except farmers in direct support of farming operations.
We have drivers that are not logging in for various reasons. Sometimes it is a non-driver doing a yard move, and other times it is a driver doing personal conveyance. How do we deal with the different types of unassigned driving time?
One key point about unassigned driving time is that the details related to why or how it was created are irrelevant. Once it has been created and it shows up in your back office the options are:
Assigning it to a specific driver, or
Attaching a comment to it explaining why it could not be assigned to a driver.
Do I have to have the correct ruleset on my ELD?
There are no regulations related to having or using rulesets on an electronic logging device (ELD). Rulesets are nothing other than the auditing mechanism used to alert the driver and company when a driver is going to go into violation, based on the rules the driver normally operates under. For all practical purposes, the driver or carrier can turn off all rule sets and let the device function strictly as a recorder. Is it a violation of the safety regulations if the “Jake Brake®” on a truck is not working?
Engine brakes, which is what a Jake Brake is a type of, are not required or covered by the safety regulations, and are not considered to be part of the vehicle’s braking system (see Subpart C of Part 393 for the brake system requirements). Therefore, an engine brake that is not functioning is not a violation of any safety regulation. We received a violation during a roadside inspection for not having the fuel tank “marked.” What are the requirements and where can we get the required markings?
The regulations at §393.67 detail the markings that must be on a fuel tank. The regulation at 393.67(c)(11) requires that the tank be marked with its capacity and instructions to not exceed 95 percent of the capacity when filling, if the body of the tank is visible. These markings are normally provided by the tank manufacturer or the vehicle manufacturer. However, there is no rule that would prohibit you from getting such markings from an outside source. The tank must also have the manufacturer’s certification markings, as required in §393.67(f)(1) to (f)(4), which can only be provided by the tank manufacturer. If these are missing, you must contact the fuel tank or vehicle manufacturer. During a roadside inspection, we got a violations for §393.53B, an automatic slack adjuster violation. The trailer in question did have automatic slack adjusters. Should we challenge the violations in DataQs?
What the officer was writing a violation for was having an automatic slack adjuster that fails to compensate for wear, as that is what is normally written under §393.53B. In other words, this violation number normally involves an automatic slack adjuster that is not automatically adjusting. This violation is normally written when a brake with an automatic slack adjuster is found out of adjustment, along with the out-of-adjustment violation. If you look at the inspection report and see another violation listed for a brake out of adjustment, this is likely what the violation is all about. If this is the case, a DataQs challenge would not be likely to succeed. If we have a fleet made up of CDL and non-CDL CMVs (vehicles that are considered commercial vehicles and are regulated, but do not require a CDL to operate), are the inspections, violations, and crashes involving the non-CDL vehicle scored in CSA?
Yes. CSA data and scores include any roadside inspections and DOT-recordable accidents involving a commercial vehicle meeting the definition of a commercial vehicle in §390.5, which includes vehicles:
With an actual or rated weight of 10,001 pounds or more;
That are designed to seat more than 8 or 15 (depending on compensation); and
That are placarded for hazardous materials, regardless of weight.
We only hire drivers that have their CDL already, but we do “finishing training” with them. Are we going to be impacted by the changes in the entry-level driver training rules?
Yes you are, but in this situation, the rule change works in your favor. Starting February 7, 2020, you will not have to worry about verifying that someone has provided the driver with entry-level training by getting an entry-level driver training certificate. The new entry-level driver training rules require drivers getting their initial CDLs to complete training at an entity that is on the training provider registry before taking the CDL test. If all you do is “finishing training” for drivers that already have their CDL, you will have no obligations under the new rules.
What are the qualifications that a person must possess to conduct employee training in bloodborne pathogens?
The person conducting the training is required to be knowledgeable in the subject matter covered by the elements in the training program, be familiar with how the course topics apply to the workplace that the training will address, and demonstrate expertise in occupational hazards of bloodborne pathogens. The trainer must also provide trainees an opportunity for interactive questions and answers with the trainer conducting the training session. See 29 CFR 1910.1030(g)(2)(vii)(N) and (g)(2)(viii) for trainer requirements. See §1910.1030(g)(2)(vii) for required training elements. What if an employee misses the annual retraining date for bloodborne pathogens?
If the annual training cannot be completed by the anniversary date, the employer should maintain a record indicating why the training is delayed and when the training will be provided. Retraining does not need to be performed on the exact anniversary date, but it must be provided on a date reasonably close to the anniversary date. Ideally, retraining is provided at least once every 12 months, within a period not exceeding 365 days. Does OSHA require our facility to mark aisles?
OSHA requires that the employer provide, and ensure each employee uses, a safe means of access and egress to and from walking-working surfaces, per 29 CFR 1910.22(c). OSHA explains that one way employers can meet this requirement is by “appropriately marking” passageways and permanent aisles as a means of identifying safe access and egress. In addition, according to §1910.176, where mechanical handling equipment is used, permanent aisles and passageways must be appropriately marked. Marking guidance can be found in two OSHA letters of interpretation dated May 15, 1972, and Feb. 14, 1977. May we keep required written plans electronically?
Yes, OSHA allows a written plan to be kept in either paper or electronic format, if it meets all other requirements of the standard in question. Where the OSHA standard requires that the written plan be made available to employees, you must ensure that employees know how to access the document and that there are no barriers to employee access. If you keep plans electronically, consider how they will be made available to employees and to any OSHA inspector who knocks on your door. Printing a copy is usually acceptable for OSHA inspectors. Is computer- or online-based training acceptable for HAZWOPER training?
In OSHA’s view, computer- or online-based training, by itself, is not sufficient to meet the intent of the agency’s training requirements for HAZWOPER, 29 CFR 1910.120 for general industry or 29 CFR 1926.65 for construction. Therefore, computer or online training, in this case, must be supplemented by site-specific elements, hands-on training and exercises, and an opportunity for trainees to ask questions of a qualified trainer. We recommend that employers who use computer or online training as a tool to help with training under §1910.120 or §1926.65 also:
Ensure the trainer is qualified, in accordance with §1910.120/§1926.65;
Augment the online training with site-specific elements;
Tailor the training to the employees’ assigned duties;
Include hands-on training to familiarize trainees with equipment, personal protective equipment, and safe practices;
Provide trainees with immediate and direct access to a qualified trainer as they are taking the course;
Offer an opportunity for trainees to ask questions of the qualified trainer;
Ensure all training elements listed in the regulation are covered;
Meet the training duration requirement under §1910.120/§1926.65 (NOTE: If computer- or online-based training does not fill the training duration requirement, it is anticipated the remaining duration will be filled with the items in the suggested bullet items above);
Ensure a trained, experienced supervisor provides any required days of actual field experience for trainees under his or her direct supervision; and
Ensure the trainer (or head instructor), trained supervisor, and, according to OSHA sources, the employer, certify the trainee has, in fact, met the applicable training and any required field experience requirements in accordance with §1910.120/§1926.65. (NOTE: The computer- or online-based training may provide a certificate of completion of the computer or online course but might not provide HAZWOPER certification per §1910.120/§1926.65.)
Will a double-walled tank meet secondary containment requirements for oil spills?
Yes and no. Double-walled tanks are essentially a tank within another tank, equipped with an interstitial space and constructed in accordance with industry standards. The inner tank serves as the primary oil storage container while the outer tank serves as secondary containment. Double-walled tanks often satisfy the “general” and “specific” secondary containment provisions for bulk storage containers under EPA’s oil Spill Prevention, Control, and Countermeasure (SPCC) regulation at 40 CFR 112.
However, if there are openings below the liquid level of the container, the facility owner or operator may need to provide additional secondary containment to conform with industry standards and local codes. Also, the owner or operator may have to provide further secondary containment: (1) for transfers to and from the double-walled tank at loading and unloading areas, and (2) for piping that goes in and out of the double-walled tank. This is further explained in two EPA memos dated April 29, 1992, and August 9, 2002. Is OSHA safety training mandatory?
Some types of training are mandatory, but whether employees must be given specific training will depend on their job duties. OSHA has training requirements for hazard communication (HazCom), lockout/tagout, bloodborne pathogens, forklift operators, and many other topics. Of course, many employers provide additional training that is not specifically required in order to better protect employees. How often does OSHA training need to be done?
A best practice is to review each applicable OSHA rule for its employee training and information requirements; some rules have annual training and/or employee information requirements. While OSHA’s training requirements vary from rule to rule, there are some commonalities:
Training is required for each employee who is exposed to the hazard.
Initial training is required before the employee is exposed to the hazard.
Refresher training can be required on a scheduled basis, as needed when workplace conditions have changed, or if the employee is no longer performing safely.
What is the purpose of a hazard communication program?
Chemicals pose a wide range of health hazards (such as irritation, sensitization, and carcinogenicity) and physical hazards (such as flammability, corrosion, and reactivity). OSHA’s Hazard Communication Standard (HCS or HazCom) at 1910.1200 is designed to ensure that information about these hazards and associated protective measures is disseminated to employees who are exposed. How do I record a case that starts at the end of one year, but continues into the next?
OSHA only wants you to record a work-related injury or illness once. If the employee is injured in one year, but needs medical treatment or days away from work in the next year, you would go back and update the original case on your 300 Log. If the employee is away from work or on restrictions when it’s time to fill out your 300A Summary, OSHA tells you to estimate the day count for the Summary and update the 300 Log with the actual day count later. Do I have to send my OSHA 300 Log to OSHA?
No, but you might have to send the data from your 300A Summary electronically to OSHA. Establishments with 250 or more employees that already keep the OSHA workplace injury and Illness must submit their 300A Summary data to OSHA. Establishments with 20-249 employees that are also listed as high-hazard industries in the Appendix to Subpart E must also submit the data to OSHA. If the employee doesn’t go to the doctor but I send him home, is that counted as a day away from work?
OSHA says that either the employer or the doctor can assign days away from work. So if a supervisor tells an employee to take a few days off to recover from a work-related injury, you have to count those days as days away from work. How often do walking-working- surfaces need to be inspected?
OSHA requires that inspections of ALL walking-working surfaces be done “regularly” and “as necessary” to ensure that they are in safe condition for employee use. This means that an employer must have some type of schedule, formal or informal, for inspecting walking-working surfaces that is adequate enough to identify hazards. Do walking-working surface inspections need to be documented?
No. Documentation is not required for walking-working surface inspections, but it would be considered a best practice to ensure that they are being done at the required frequency. In general, documentation serves as a record of the company’s compliance with applicable regulations, helps identify trends, aids in post-accident investigation, and allows a company to trace it’s history of a hazard(s). Do aisles and walkways need to be marked?
OSHA’s rule for access and egress under Subpart D is performance based. It requires that employers provide and ensure each employee uses a safe means of access and egress to and from walking-working surfaces in their workplace. Although OSHA removed the language to mark aisles and walkways, the Agency says that one way of meeting their requirement is by permanently marking aisles, walkways, and paths. Employers can also use cones, barriers, chains, etc. When must an offset passage be used at the top of a fixed ladder?
An offset passage may be used in lieu of a self-closing gate. It must prevent a person from walking directly into the opening of a hole. In other words, there cannot be a direct entrance/passage to the opening at the top of the fixed ladder. Essentially, the worker would not be able to directly access the ladder opening without walking around the inside railing that is offset from the outside railing, thus affording the worker an adequate protective barrier. Does OSHA set an age limit to operate a forklift?
OSHA doesn’t, but the Fair Labor Standards act (and similar state child labor laws) set the minimum age at 18 years to operate such hazardous machinery. Do we have to fit test workers who wear dust masks?
If workers are required to wear this equipment, then the full respiratory protection program (including fit testing) must be implemented.
In 1910.134(b), OSHA’s respiratory protection standard defines “filtering facepiece (dust mask)” as: “a negative pressure particulate respirator with a filter as an integral part of the facepiece or with the entire facepiece composed of the filtering medium.” OSHA considers N95 respirators to be a dust mask (i.e., filtering facepiece respirator).
There is an exception for voluntary use of filtering facepiece respirators, but if the use is required, then employers must meet all of the rule’s requirements for using a NIOSH-approved respirator, medical evaluations, fit tests, training, and the written program. How long do we have to keep forklift pre-shift inspection forms?
OSHA doesn’t set any specific retention times. In fact, OSHA doesn’t actually require documentation of the inspections, though most companies find it to be a best practice to ensure the items are inspected as planned. So, it is a matter of company policy as to how long to keep the records. It’s a good idea to document in your procedure that “We keep inspection sheets for [time period].” We will be installing a fixed ladder next month, at what length is it required to have a personal fall arrest system or ladder safety system?
Fixed ladders that extend more than 24 feet need a personal fall arrest system or ladder safety system per OSHA’s 1910.28 standard. Do mobile cranes used for general industry tasks fall under the construction training requirements in 1926 Subpart CC?
No, the training requirements for those cranes is found in the 1910.180 standard. How often do personal fall arrest systems need to be inspected?
Prior to each use for wear, damage and other deterioration, and defective components shall be removed from service. When can I use a designated area for fall protection?
A designated area may be used when working on low-slope roofs (also called flat roofs) in two situations. Note that if work will be performed within 6 feet of the edge, a designated area cannot be used. First, if the work will be at least 6 feet (but less than 15 feet) from the edge, a designated area may be used — but only if the work is temporary and infrequent. For example, changing an air conditioner filter once per month would qualify as temporary and infrequent. Second, if employees will be working 15 feet or more from the edge, a designated area may be used; at this distance, it doesn’t matter how long the workers are on the roof. Can we use chains as fall protection at a loading dock?
Maybe. OSHA does not specifically allow or prohibit chains. If used, chains must be equivalent to a guardrail. That means at least two chains would be needed, because a guardrail must have both a top rail and mid rail. A single chain across the opening would be a violation. In addition, the chains must be able to withstand 200 pounds of force, and should be tight enough so that a person could not fall between the chains and the dock edge. Are wheel chocks required for trailers at loading docks?
Trailers parked at loading docks must utilize some method to prevent the trailer from moving. OSHA gives examples of wheel chocks or sand shoes, but other methods could also be effective, such as dock locks. Note that even if the dock ramp is inclined so the trailer sits at an angle, a trailer could still move, so an additional methods (like wheel chocks) would still be required to prevent movement. How often do portable ladders have to be inspected?
Any portable ladder (including wood, metal, and even certain stepstools) must be inspected before the first use on each shift. If a ladder is not used in a particular day, you don’t need to inspect it. However, the first time a ladder is taken out for use each shift, it must be inspected for defects. If any problems are noted, the ladder should be removed from service for repair or replacement. This requirement to inspect ladders before use has been in effect in 2017.
Can we require all employees to speak English while they are at work?
Federal law (29 CFR 1606.7(a) greatly restricts the extent to which English-only rules are acceptable. Federal law provides that a rule requiring employees to speak English only at all times (including breaks and meal periods, as you noted) is a burdensome term and condition of employment For an English-only rule to be acceptable while the employees are actually working, it would need to be narrowly tailored to address business necessity. Situations in which business necessity would justify an English-only rule would include:
For communications with customers, coworkers, or supervisors who only speak English. This doesn't mean you can require employees to speak English at all times because some workers don't speak an alternate language; it means that you can require an employee to speak English when speaking directly to an employee who speaks only English.
In emergencies or other situations in which employees must speak a common language to promote safety. For instance, a rule requiring employees to speak only English in the event of an emergency and when performing their work in specific areas of the workplace that might contain flammable chemicals or other potentially dangerous equipment is narrowly tailored to safety requirements and does not violate Title VII.
For cooperative work assignments in which the English-only rule is needed to promote efficiency. For example a rule requiring investigators (some of whom only speak English) to speak only English when working as a team to compile a report or prepare a case for litigation would not likely violate Title VII.
To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication in English with coworkers or customers. A rule requiring employees to speak only English with English speaking coworkers and customers when a supervisor is present to modify their work performance would be narrowly tailored to promote the efficiency of business operations, but the rule would not be able to apply to employees' casual conversations when they are not performing job duties.
The fact that other employees feel uncomfortable when coworkers converse in another language is not reason enough for an English-only rule.
What kind of information are we allowed to provide in reference for a former employee?
Many states have laws in place granting immunity to employers for providing truthful references. Even if your state does not, you can and should still provide honest, accurate information. For the most part, if the reference you give is truthful and delivered in good faith, you would be shielded from any claims by the former employee.
In addition, if you fail to disclose certain information (such as violence, theft, etc.) about the employee that could affect a future employer or coworkers, you could potentially be accused of negligent referral. Can we prohibit employees from secretly recording conversations at work?
In many states, it is legal to record a telephone conversation between two people as long as at least one person has given consent. This is known as a one-party consent law.
However, while employees are on work premises and engaging in work-related activities, you may prohibit this activity even if it is legal in the state. You can think of it as similar to other activities that are legal but usually not permitted in the workplace (smoking, drinking, etc.). We have an associate who was arrested for stealing money from another company. He has not been convicted of the crime. The arrest has been posted in the paper as well as on social media. Is it legal to suspend the associate until there is an outcome to the case OR is it legal to terminate the associate for the theft arrest?
Before you take the step of terminating the employee, there are factors to consider:
First, remember that an arrest is different than a conviction. An arrested employee has not been found guilty. All states except Montana are “at will” states, which means you can terminate an employee for any reason, as long as it’s not an illegal reason, such as discrimination against a particular protected class, e.g., race, gender, religion, age, etc. In some cases, however, acting on an arrest alone can be seen as discriminatory. It’s important to ensure you don’t treat this one employee differently than you would treat any other employee in the same situation.
Second, while arrest alone may not be a reason for termination, the Equal Employment Opportunity Commission (EEOC) does allow employers to base decisions on the conduct underlying the arrest if it makes the employee unfit for his or her position. In this case, if the employee was arrested for stealing money, you may not want him handling cash on the job or dealing with company finances in any way. Finally, an employee can be terminated based on absences. If this employee is in jail, he is not protected from termination or discipline for being absent from work. If you would normally terminate an employee who could not come to work for a certain length of time, you could also terminate in this instance.
However, while employees are on work premises and engaging in work-related activities, you may prohibit this activity even if it is legal in the state. You can think of it as similar to other activities that are legal but usually not permitted in the workplace (smoking, drinking, etc.). We recently bought out another company. This company had written contracts with some of its employees. Within the contract agreement it stated that they will be employed for two years. Do they need to sign the new employee handbook that states that all employees are subject to at-will status?
If these employees are under a contract, that supersedes anything in the employee handbook because the employee handbook is not considered a contract. By signing the handbook, employees are merely acknowledging that they received it; the signature does not make it a contract.
While the handbook is a good place to include an at-will disclaimer, you may also want to include language explaining that the handbook is not intended to create an actual or implied contract for continued employment.
Signing or not signing the handbook would likely have no impact on the validity of the written contracts that some of the employees have. Am I within our company’s rights to have someone clock out and go home if they are caught not wearing their PPE? I’ve covered the safety rules regarding this extensively with all employees.
We are not aware of any reason you couldn’t enforce a company policy requiring PPE to be worn by having this employee clock out and leave. This is especially valid when the rules have been presented to all employees extensively and this employee chose to disregard them, thus violating the policy. Just make sure you are treating all employees fairly (not giving someone else without proper equipment a pass while sending this one home). May we keep required written plans electronically?
Yes, OSHA allows a written plan to be kept in either paper or electronic format, if it meets all other requirements of the standard in question. Where the OSHA standard requires that the written plan be made available to employees, you must ensure that employees know how to access the document and that there are no barriers to employee access. If you keep plans electronically, consider how they will be made available to employees and to any OSHA inspector who knocks on your door. Printing a copy is usually acceptable for OSHA inspectors. Is there a physical size requirement when posting mandatory state and federal labor laws in the workplace?
Each posting is governed by a different law, and some of these laws do require that the posting is displayed at a certain size.
For example, the federal OSHA poster must be on paper measuring at least 8 1/2 x 14 inches, and the size of the type must be at least 10-point type. The heading must generally be in 36-point type.
State posters may also have size requirements. In general, all postings must be readable, and must be posted in a location where they are readily visible to employees. How long can we withhold a final paycheck?
Many states have strict rules about paycheck laws. The federal Fair Labor Standards Act (FLSA) says that although employers aren’t required to issue final paychecks immediately upon employment separation (whether voluntary or involuntary), nonexempt employees must be paid for all hours worked and be paid on the next regularly scheduled payday. Can we hire a 16-year-old over the summer to work full-time in our warehouse?
The Fair Labor Standards Act (FLSA), does not limit the number of hours (or time of day) for workers 16 years and older. Some states have stricter rules, so double check your state law before employing young workers. Keep in mind, the FLSA prohibits workers under the age of 18 in non-agricultural operations from operating hazardous equipment (such as power tools, machinery, forklifts, etc.). Can we require exempt employees to punch a time clock?
Yes, exempt employees can be required to follow a particular work schedule as well as punch a time clock or track their work hours. Being classified as “exempt” means only that they’re exempt from overtime and minimum wage laws. In places where marijuana is legal, can I smoke at work?
You can almost certainly not smoke pot at work. Many state laws prohibit marijuana use in public and employers can prohibit marijuana use in the workplace.
In addition, there could be a restriction on smoking in the workplace. This would apply to marijuana as well as to tobacco.
Simply bringing weed into the workplace could be a violation of company policy as well. Make sure you’re familiar with your company’s drug and alcohol policy before bringing any marijuana into work. If I use medical marijuana, can I use it at work?
It’s very unlikely that you will be allowed to use marijuana at work, even if you use medical marijuana because of a disability.
State laws legalizing medical marijuana allow employers to ban marijuana use in the workplace. This applies to marijuana used for medical reasons, as well as pot that’s used recreationally.
In some states, your employer might need to allow you to use marijuana when you’re not at work. If you’re using it to treat a disability, talk to your employer about a possible accommodation for off-duty use.
Some workers cannot be allowed to use marijuana because of safety risks, however. Your employer will take your job duties into account when deciding whether or not off-duty use is acceptable. For example, drivers who are subject to Department of Transportation drug testing rules can’t use marijuana, even for medical purposes.
In states where medical marijuana is still illegal, you definitely cannot use it at work. If you use it outside of work, you could be disciplined or fired for a positive drug test.
For more information, look over your company’s drug and alcohol policy and talk to your company’s human resources director. Can a drug test prove that a person is impaired by marijuana?
A drug test can show that a person has used marijuana. It does not show exactly when it was used or the effect it is having, so it cannot be used as proof of impairment. When proving impairment due to marijuana use, it is better to look for visible signs, including:
Difficulty in sustaining attention,
Loss of coordination,
Slowed reaction time,
Disregard for safety.
Which labor law posters do I need?
There is no single list of labor law posters that applies to every company, but most large employers in the United States need to post these federal posters:
Employee Polygraph Protection Act
Employee Rights Under the Fair Labor Standards Act
Equal Employment Opportunity is the Law
Employee Rights and Responsibilities Under the Family and Medical Leave Act
Job Safety and Health: It’s the Law!
Your Rights Under USERRA” (This poster can be displayed or the full text of the notice can be emailed or distributed to employees)
The other posters that you need will depend on state and local laws and the industry you’re in. If you’re a federal contractor, you have additional posting responsibilities. Details about which postings are needed can be found in this Posting Requirements report.
Can I put labor law posters online if I don’t have space to post them?
Employers can’t use online or electronic posters to satisfy posting requirements. In order to be compliant, posters must be posted in the workplace.
One federal agency that addresses this is the Equal Employment Opportunity Commission (EEOC). On the website for the Equal Employment Opportunity is the Law posting, it says, “In most cases, electronic posting supplements physical posting but does not itself fulfill the employer's basic obligation to physically post the required information in its workplaces.”
Each posting is required by a different law or regulation, however, and a few laws do allow for electronic posting. The Uniformed Services Employment and Reemployment Rights Act (USERRA) notice and Family and Medical Leave Act (FMLA) poster are two examples. The FMLA posting regulation is a bit ambiguous, however, as it states that it may be displayed electronically provided all other requirements are met.
While these laws do mention electronic posting, the vast majority of posting regulations require physical posters. If you have remote employees who work at home and never come into the office, and who are unlikely to post a set of posters in their den, then electronic posters are an option for making them aware of their rights under labor laws. If workers report to a building or work site, however, labor law posters must be displayed there. Is __________(everything from IVF to back injuries and everything in between) covered by the Family and Medical Leave Act?
Much will depend upon whether the condition meets the regulatory definition of “serious health condition.” May we ask all employees to disclose any medication they are taking, prescription or over-the-counter?
No, doing so would risk a claim under the Americans with Disabilities Act, which restricts when employers may ask employees medical questions, including those about medications. What are our options if an employee requests leave for his own condition, then is seen on social media behaving in a way that belies his reason for leave?
If the employee is taking leave under the Family and Medical Leave Act, and you receive information that casts doubt upon the employee’s stated reason for the absence, you may request a recertification. May we request that employees provide doctors’ notes for each instance of intermittent leave under the Family and Medical Leave Act?
Asking for doctor’s notes has been seen as asking for recertification, so such requests would need to comply with the recertification provisions. May we require that all employees have no restrictions?
Generally, no. Doing so would undermine the reasonable accommodation provisions of the Americans with Disabilities Act.