NLBMDA’s August 10 Newsletter

Wednesday, August 12, 2020

NLBMDA Applauds Congressional Letter to OSHA on Crane Rule Material Delivery Exemption

On July 27, key members of the House of Representatives sent a NLBMDA-backed letter to the Occupational Safety and Health Administration’s (OSHA) Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt requesting that the agency preserve the material delivery exemption in the 2010 Crane and Derricks in Construction rule and revoke its 2016 Letter of Interpretation (LOI) which effectively repealed the material deliver3y exemption.

The Congressional letter was led by Representative Ron Wright (TX-6) who serves on House Education and Labor Committee and the Workforce Protections Subcommittee. It was also signed by Reps. Fred Keller (PA-12), Greg Gianforte (MT-AL), Scott Perry (PA-10), Tom Tiffany (WI-7), Jim Baird (IN-4) and Bob Gibbs (OH-7). The letter was supported by NLBMDA’s federated state and regional associations and the National Association of Home Builders (NAHB).

“This is a big step towards a resolution to the concerning letter of interpretation (LOI) issued by OSHA in 2016. NLBMDA applauds Congress for hearing the concerns of our dealer members and requesting OSHA preserve the material delivery exemption as written in the 2010 Crane and Derricks in Construction rule,” said Jonathan Paine, NLBMDA President & CEO. “OSHA’s 2016 LOI has fostered a great deal of uncertainty in the lumber and building material dealer industry and NLBMDA is encouraged that our dealers’ grassroots efforts have gotten the attention of Congress. NLBMDA thanks Representative Wright and all of the signers of the letter for their leadership on this issue and we are hopeful that OSHA will take the concerns of Congress seriously.”


In 2010, OSHA issued regulations regarding the use of cranes and derricks in construction, including certification and safety requirements. The regulations included an OSHA-approved exemption for building material delivery, citing that the small cranes used to deliver building materials do not pose the same risks as construction cranes and that the rules would unnecessarily burden the small businesses, builders, material supply dealers, and other parties who utilize them. Unfortunately, OSHA contradicted the final rule and essentially repealed the material delivery exemption in a 2016 Letter of Interpretation (LOI). The agency did not provide any reasoning for this change and failed to give small businesses and other stakeholders the opportunity to provide public comment, circumventing the traditional rulemaking process.

Since the LOI was issued in 2016, NLBMDA has engaged OSHA numerous times, including an in-person meeting with agency officials and a follow-up letter last year, but OSHA has yet to respond to the industry’s concerns. As a result, NLBMDA decided to work with Congress and the House Education and Labor Committee in an effort to get this issue resolved.

NLBMDA Signs Letter to Congress on Employer Liability Protections

NLBMDA recently signed a coalition letter to Congress urging them to include employer liability protections from S. 4317, the "SAFE TO WORK Act,” in any final Phase 4 COVID-relief package. Provisions in the “SAFE WORK ACT” would protect against unfair lawsuits for businesses that work in good-faith to comply with applicable governmental health guidelines.

The “SAFE WORK ACT” was included in the Senate’s Phase 4 legislation released at the end of July and NLBMDA continues to lobby Congress to include it in the final relief package currently under consideration.

IRS Issues Guidance on Recapturing Excess Employment Tax Credits

The IRS has issued guidance through temporary and proposed regulations relating to the recapture of erroneously issued employment tax credit refunds under both the Families First Coronavirus Response Act (Families First Act) and Coronavirus Aid, Relief and Economic Security Act (CARES Act).

The IRS has revised or is in the process of revising the Form 941, Form 943, Form 944 and Form CT-1, so that employers may use these returns to claim the paid sick and family leave and employee retention credits.

Employers may also receive advance payment of the credits up to the total allowable amounts. The IRS has created Form 7200, Advance Payment of Employer Credits Due To COVID-19, which employers may use to request an advance of the credits. Employers are required to reconcile any advance payments claimed on Form 7200 with total credits claimed and total taxes due on their employment tax returns.

Any refund of these credits paid to a taxpayer that exceeds the amount the taxpayer is allowed is an erroneous refund. The regulations released today authorize the assessment and collection of any erroneous refund of the credits in the normal course of processing the applicable employment tax returns or Forms 7200. This allows the IRS to efficiently recover any refund, while preserving administrative protections for taxpayers.

DOL Releases Additional Guidance on COVID-19 Workplace Protections and Paid Leave

The U.S. Department of Labor has published additional guidance for workers and employers on how the protections and requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) affect the workplace as workplaces reopen amid the COVID-19 pandemic. The guidance from the Department’s Wage and Hour Division (WHD) includes commonly asked questions and answers that address critical issues in all three laws.

These new FAQ guides can be found here:

This guidance is the latest addition to compliance assistance materials the WHD has published. These materials include a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers resource about paid sick and expanded family and medical leave under the FFCRA. WHD has also produced two guidance posters, one for federal workers and one for all other employees, that fulfill notice requirements for employers obligated to inform employees of their FFCRA rights; Questions and Answers about posting requirements; and simple Quick Benefits Tips to determine how much paid leave the FFCRA allows workers to take.

Regulatory, Codes and Standards

DOT Says It's Full Speed Ahead on Hours Changes Implementation

The Federal Motor Carrier Safety Administration (FMCSA) says it will implement the new hours of service (HOS) rule designed to give drivers more flexibility in their daily work schedule on Sept. 29, according to Acting Administrator Jim Mullen. On Sept. 29, drivers can begin utilizing the new provisions related to split-sleeper-berth logging, the adverse conditions exception, short-haul air mile radius and time limitations, and the 30-minute break. This is in spite of several petitions in favor of reconsidering the HOS rule and the petition in favor of a complete stay of the rule from the International Brotherhood of Teamsters, Advocates for Highway and Auto Safety, and others. The petition to reconsider the rule put forward by the Commercial Vehicle Safety Alliance (CVSA) offers options for addressing what CVSA feels is inconsistency between FMCSA's intent and the regulatory language of the rule around the adverse conditions exception. Though FMCSA's public statements, the Alliance said, seem to indicate it doesn't intend to allow operators running under the 150 air mile short haul exception to use the adverse conditions provision, regulatory language as currently positioned seems to allow it. CVSA offered a few options to adjust regulatory language to remove potential confusion, whether use of the adverse conditions exception by short-haul drivers is ultimately allowed or not. CVSA also asked for a mileage limitation on the use of personal conveyance, a CVSA ask that has been made of the agency before without results. The Alliance argued that some "maximum allowed distance for personal conveyance" might eliminate inconsistent enforcement among inspectors as well as confusion for inspectors and drivers – and "ensure safer roads, as commercial motor vehicle drivers are on notice that personal conveyance time cannot be used as a safe harbor for driving hundreds of miles after exhausting their HOS."

Overdrive (08/05/20) Dills, Todd

FBI Bulletin Exposes Another Crack in ELD Mandate

A recent bulletin from the FBI's Cyber Division cited "vulnerabilities" in electronic logging devices (ELDs) and exposed the lack of cybersecurity or quality assurance requirements for ELD suppliers. "Cyber criminals could exploit vulnerabilities in electronic logging devices. ... Although the mandate seeks to provide safety and efficiency benefits, it does not contain cybersecurity requirements for manufacturers or suppliers of ELDs, and there is no requirement for third-party validation or testing prior to the ELD self-certification process," said the bulletin. "This poses a risk to businesses because ELDs created a bridge between previously unconnected systems critical to trucking operations." Cyber criminals could use an insecure ELD to move laterally into a larger company business network, steal such personal information as business and financial records, or install malware that could prevent the vehicle from operating until a ransom is paid.

Land Line Magazine (07/20) Schremmer, Mark

OSHA Issues Revised Rules on Employee Medical Records

The U.S. Occupational Safety and Health Administration (OSHA) issued revisions to its rules regarding access to employee medical records and internal procedures that federal personnel must follow when obtaining and using personally identifiable employee medical information. OSHA has amended several provisions of the rules to improve efficiency in implementing these internal procedures. Included in the changes are that the OSHA medical records officer is responsible for determining the transfer and public disclosure of personally identifiable employee medical information in OSHA's possession. The revised rules also clarify that a written medical access order does not constitute an administrative subpoena and establish new procedures for accessing and safeguarding personally identifiable employee medical information maintained in electronic form.

Business Insurance (07/31/20) Esola, Louise

OSHA Must Release Workplace Injury and Illness Data: Court

The U.S. Occupational Safety and Health Administration (OSHA) must make public workplace injuries and illnesses records, according to an announcement from the Public Citizen Foundation, which sued the federal agency in 2018 over access. The agency has until Aug. 18 to provide the data of 237,000 employers, under a federal court ruling that ends a two-year battle over the agency's controversial electronic record-keeping rule. The regulation, formally known as the Improve Tracking of Workplace Injuries and Illnesses rule, requires employers with 250 or more employees and certain employers in high-risk industries with 20 or more employees to electronically submit their injury and illness data to OSHA. The Obama administration planned to make that data public, which sparked controversy over OSHA's ability to protect personal information. Public Citizen used the Freedom of Information Act to request the information, which employers record on OSHA Form 300A and submit to the agency electronically. Public Citizen sued OSHA to obtain the records after the agency withheld the data in full, claiming that the records contained confidential commercial information exempt from disclosure. Last month, a magistrate judge recommended that the court enter judgment for Public Citizen, finding that the records are not confidential. OSHA had until July 21 to object to the judge's recommendation, but instead, OSHA agreed to produce the records in full. The U.S. District Court for the District of Columbia entered an order requiring that OSHA produce the requested records by Aug. 18.

Business Insurance (07/31/20) Esola, Louise

CVSA Releases Out-of-Service Criteria App

The Commercial Vehicle Safety Alliance's (CVSA) latest North American Standard Out-of-Service Criteria (OOSC) took effect April 1 and is now available for purchase through the new CVSA OOSC app, which contains the out-of-service criteria, inspection bulletins, pictorials, online training, inspection procedures, operational policies, inspection and educational videos, brochures, and webinars. Beginning with 2019 and moving forward, all versions of the OOSC will be available in one location via the CVSA OOSC app. 2020 OOSC is also available as a spiral-bound, hard-copy handbook, electronic PDF, Spanish U.S. edition, bilingual English/Spanish U.S. version, French Canadian edition, and bilingual English/French Canadian version.

American Trucker (08/06/20)

Workplace Safety

Worried About Driving Through Protests? Here Are 12 Tips to Keep Truckers Safe.

With the rise in protests and sometimes violent demonstrations on the road since the death of George Floyd at the hands of Minneapolis police, the Federal Motor Carrier Safety Administration issued guidance for truckers who encounter "incidents or threats." Meanwhile, the American Trucking Associations, the ATA Safety Management Council, and the ATA Transportation Security Council recently released guidelines for truckers who have to drive through potentially dangerous protest areas. These guidelines call for truckers to: Immediately report any emergency situation to local law enforcement by calling 911. Avoid areas of unrest. Plan for road closures. Contact the delivery location for current and timely situations and conditions. Remain in regular communication with your dispatcher to provide travel updates. Plan ahead, try to make deliveries in areas of unrest during the day, at night park in well-lit, safe areas. Assess every situation prior to exiting the cab of your truck. Conduct thorough pre-trip inspections before departing domiciled locations. Always keep doors locked and windows closed. Remove keys from unattended vehicles and ensure trailer locking and latching mechanisms are functioning properly. If you encounter a gathering, stop your vehicle and do not drive through. Avoid any interaction and do not provoke the group. If available, utilize your in-cab camera in an unsafe situation to document your surroundings. Maintain continuous contact with your dispatcher and safety department for specific operating procedures and follow company policy.

CDL Life News (07/28/20)

FMCSA Reports Over 25,000 Drug Violations

The Federal Motor Carrier Safety Administration reported 25,168 drug violations among commercial motor vehicle (CMV) drivers for the year as of June, according to the agency's June monthly report for its Drug and Alcohol Clearinghouse. The Clearinghouse, a central repository of records of CMV drivers' drug and alcohol violations, is intended to prevent drivers from concealing any drug or alcohol violations simply by moving to another job or another jurisdiction. The Clearinghouse also reported 593 alcohol violations so far this year. Preemployment testing accounted for 13,413 drug violations, including 11,663 positive tests and 1,751 refusals. Preemployment alcohol testing produced 22 positive results, with 4 refusals, resulting in 26 violations. Random drug testing led to 7,149 positive tests and 1,404 refusals for 8,553 total violations. Random alcohol testing saw 173 positive tests and 77 refusals for 250 total violations. Postaccident drug testing led to 983 positive tests and 127 refusals for 1,110 total violations. Postaccident alcohol testing saw 30 positive tests and 25 refusals for 55 total violations. There were 273 positive results in reasonable-suspicion drug testing and 170 refusals for 443 total violations. There were 125 positive results in reasonable-suspicion alcohol testing and 32 refusals for 157 total violations. There were 248 positive results in return-to-duty drug testing and 29 refusals for 277 total violations. In return-to-duty alcohol testing, there was one positive result and two refusals for a total of three violations. In follow-up drug testing, there were 462 positive results and 69 refusals for 531 total violations. In follow-up alcohol testing, there were 11 positive results and two refusals for a total of 13 violations. Marijuana accounted for nearly half of the positive drug test results, followed by cocaine, amphetamine, and methamphetamine. (07/27/20)

Virginia Tech Study: Experience More Important Than Age in Driver Safety

According to a recent study from the Virginia Tech Transportation Institute's National Surface Transportation Safety Center for Excellence, age does have some impact on potential driving risk, but commercial motor vehicle (CMV) driving experience is more important when considering overall risk. The study, which highlights the continued driver shortage and the largely aging workforce, gathered its data from the Federal Motor Carrier Safety Administration (FMCSA)-sponsored study Commercial Driver Safety Risk Factors, which is currently under FMCSA review. While some might think that age is the bigger factor in determining risk, as it does with determining insurance rates for non-CDL drivers, the study found that experience in big rigs was the dominating factor. This bears upon the industry debate over allowing drivers younger than 21 to drive interstate. The aim of the Virginia Tech study was to look at how safety performance changes across differing age and commercial vehicle driving experience categories. It compared drivers of six different age categories and eight different driving experience categories. The study showed that "for drivers with seven months to one year of CMV driving experience, crash rates were higher for drivers aged 55 years and older compared to their younger counterparts." When combining all crash types, drivers with less than a year of CMV experience had "higher proportions of crash involvement" than drivers with more experience, regardless of age. Preventable crashes showed similar results, "with less-experienced CMV drivers having higher proportions of crash involvement across the majority of age groups."

Heavy Duty Trucking (07/27/20) Babcock, Stephane

NIOSH Reveals Keys for Improving Driver, Fleet Safety

Researchers from the National Institute for Occupational Safety and Health (NIOSH), Miami University, and the Network of Employers for Traffic Safety (NETS) found that corporate fleet safety management practices like driver training, fatigue risk management, in-vehicle monitoring systems, and strong mobile phone policies can reduce the number and severity of motor vehicle crashes. They analyzed 2016 crash data for NETS member companies and their responses to a detailed questionnaire about their fleet safety management programs and policies. The data covered 70 companies, nearly almost 333,000 vehicles ranging from passenger cars to tractor-trailers in a variety of industries, close to 5.5 billion vehicle miles driven. NIOSH said motor vehicle crashes are the leading cause of workplace fatalities, but the researchers found that companies with policies on checking mobile phone records after all collisions and prohibiting the use of all electronic devices while driving, including the use of hands-free phones, fared better.

EHS Daily Advisor (07/13/20) Burdick, Guy

NLBMDA 8/12/2020

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