Employment Law Daily Walmart violated OSHA regs by failing to provide employees on injury response team with hepatitis B vaccinations
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Tuesday, April 2, 2019

Walmart violated OSHA regs by failing to provide employees on injury response team with hepatitis B vaccinations

By Ronald Miller, J.D.

Substantial evidence supported an administrative law judge’s finding that Walmart failed to show that first aid offered by employees on an injury response team was rendered “generally at the location where the incident occurred,” where the great majority of first aid was administered in a first-aid room.

OSHA did not err in determining that the collateral duty exemption did not apply to employees at a Walmart distribution center because they did not respond to injuries where the incident occurred, but offered treatment in a first-aid room, ruled the Eighth Circuit. Moreover, evidence showed that one citation was warranted because Walmart did not provide four members of an injury response team with a required third dose of the hepatitis B vaccine until well past the recommended timetable. Evidence also supported the agency’s determination as to a second citation that Walmart failed to offer certain employees the vaccine within ten working days of their assignment to the response team. Additionally, the violations were correctly found to be repeat violations based on Walmart’s settlement of a similar violation at a store in Rochester, New York in 2012 (Secretary of Labor v. Wal-Mart Stores East, LP dba Walmart Distribution Center #7035, March 28, 2019, Grasz, L.).

Bloodborne pathogen regulation. OSHA’s bloodborne pathogen regulation includes health standards related to the prevention of the transmission of hepatitis B in the workplace. Certain employees at Walmart’s Alachua, Florida distribution center volunteered to serve on a Serious Injury Response Team (SIRT) to respond to medical incidents and provide routine first aid until emergency personnel (if necessary) arrived at the scene. These employees had occupational exposure. As a result, Walmart was required to make the hepatitis B vaccine and vaccination series available to them.

After receiving complaints about the distribution center’s safety program, OSHA conducted an inspection of the facility. Thereafter, Walmart was cited by OSHA for failure to comply with regulations pertaining to providing hepatitis B vaccinations, 29 C.F.R. § 1910.1030(f).

Citations. The first violation alleged a serious violation of § 1910.1030(f)(1)(ii)(D) and proposed a fine of $5,000. It was asserted that five SIRT members were “potentially exposed with an occupational exposure to bloodborne pathogens because the employer did not provide the [h]epatitis B vaccination series.” A second citation alleged a repeat violation of § 1910.1030(f)(2)(i) and proposed a fine of $25,000, asserting that Walmart did not offer eight employees the hepatitis B vaccine within ten working days of assignment to the SIRT team.

Walmart contested the citations and penalty at an administrative hearing. An administrative law judge concluded that the Secretary of Labor had met his burden to establish that Walmart had committed both alleged violations. The penalty for Citation One was reduced to $1,000, but a penalty of $25,000 was imposed for Citation Two. After the ALJ decision became final, Walmart petitioned for review to vacate both citations.

Collateral duty exemption. Walmart attacked the validity of both citations based on its assertion that it fit within the terms of the collateral duty exemption. This exemption was set forth in OSHA Directive CPL 2-2.69, which provides enforcement procedures for the occupational exposure to bloodborne pathogens. The policy provides that citations should be issued for employers who have not offered the hepatitis B vaccine to first aid providers before those workers are exposed to hepatitis B.

However, an exemption is carved out for instances when three conditions are met: (1) the primary job assignment of the first aid provider is not rendering first aid or other medical assistance; (2) any first aid rendered is only a collateral duty, responding solely to injuries resulting from workplace incidents, generally at the location where the incident occurred; and (3) the employer’s exposure control plan specifically addressed the provision of hepatitis B vaccine to all first aid providers who render assistance in any situation involving the presence of blood.

Walmart contended that it proved each of the listed conditions were true as to the relevant SIRT members. However, the appeals court disagreed because substantial evidence supported the ALJ’s finding that Walmart failed to show the conditions in paragraph (2) were satisfied. Rather, two SIRT team members testified that when they received notification of a medical incident, they almost always responded by going to the SIRT room. Accordingly, substantial evidence supported the ALJ’s finding that Walmart failed to show that first aid offered by employees on its injury response team was rendered “generally at the location where the incident occurred,” where the great majority of first aid was administered in the first-aid room (the SIRT room).

Hepatitis B vaccination series. The appeals court next addressed Walmart’s contention that it should vacate Citation One, which charged Walmart with failing to provide the hepatitis B vaccination series to SIRT members in accordance with Center for Disease Control recommendations. The CDC’s recommendations set forth a timetable for completing the three-shot hepatitis B vaccination series, with the third shot given four to six months after the first.

Because Walmart did not provide four SIRT members with the third dose of the vaccine until after the inspection, the ALJ held that Walmart violated the standard. The appeals court agreed with that assessment. The undisputed evidence showed that Walmart’s supervisor of the SIRT team knowingly failed to provide four SIRT members the third dose of the vaccine until after the inspection. As a result, the lapse between the second and third doses for these employees ranged from 21 to 24 months, which far exceeded the range recommended by the CDC.

Timely offer of vaccination. Next, the court addressed Walmart’s challenges to Citation Two, which charged it with failing to offer employees the hepatitis B vaccine within ten working days of their assignment to the SIRT team. However, the appeals court did not find any merit to its arguments. First, the manager in charge of the SIRT team conceded that he failed to offer the vaccine to certain volunteers after they completed their training. There was also documentary evidence suggesting that members of the SIRT team were never offered immunization.

Repeat violation. Finally, the ALJ did not err by designating Walmart’s violation of § 1910.1030(f)(2)(i) as a repeat violation, because the employer had entered into a stipulated settlement with the Secretary upholding a serious violation in January 2012 at a store in Rochester, New York. Walmart failed to rebut the presumption that these violations were substantially similar.

Accordingly, the appeals court denied Walmart’s petition for review of an order of the Occupational Safety and Health Review Commission.

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