Wal-Mart Stores East, LP, doing business as Walmart Distribution Center # 7035 Petitioner
Alexander Acosta, Secretary of Labor Respondent
Submitted: September 26, 2018
Petition for Review of an Order of the Occupational Safety
and Health Review Commission
COLLOTON, BEAM, and GRASZ, Circuit Judges.
Occupational Safety and Health Administration
("OSHA") cited Wal-Mart Stores East, L.P., doing
business as WalMart Distribution Center #7035
("Wal-Mart"), for two purported violations of
OSHA's regulation relating to bloodborne pathogens, 29
C.F.R. § 1910.1030. More specifically, OSHA alleged
Wal-Mart failed to comply with regulations pertaining to
providing hepatitis B vaccinations to employees who
voluntarily served on a Serious Injury Response Team
("SIRT") at Wal-Mart's Alachua, Florida,
distribution center (the "Alachua DC"). We deny
Wal-Mart's petition and affirm the agency order.
bloodborne pathogen regulation includes health standards
related to the prevention of the transmission of hepatitis B
in the workplace. See 29 C.F.R. § 1910.1030(f).
The regulation directs employers such as Wal-Mart to, among
other things, "make available the hepatitis B vaccine
and vaccination series to all employees who have occupational
exposure, and post-exposure evaluation and follow-up to all
employees who have had an exposure incident."
Id. § 1910.1030(f)(1)(i). "Occupational
Exposure means reasonably anticipated skin, eye, mucous
membrane, or parenteral contact with blood or other
potentially infectious materials that may result from the
performance of an employee's duties." Id.
parties agree members of the SIRT team - employees who would
volunteer as a secondary duty to respond to medical incidents
and provide routine first-aid care unless and until emergency
personnel (if necessary) arrived at the scene - were
employees who had occupational exposure. As a result,
Wal-Mart was required under the regulation to make the
hepatitis B vaccine and vaccination series available to them.
Id. § 1910(f)(1)(i).
regulation generally required Wal-Mart to make the hepatitis
B vaccine available to willing SIRT members after they were
provided certain information related to hepatitis B,
including the benefits of vaccination, but "within 10
working days of initial assignment." Id. §
1910.1030(f)(2)(i); see also id. §
1910(g)(2)(vii)(I). If an employee elected vaccination, the
regulation further required Wal-Mart to ensure the hepatitis
B vaccine and vaccination series was "[p]rovided
according to recommendations of the U.S. Public Health
Service current at the time these evaluations and procedures
take place, except as specified" by the terms of the
regulation. Id. § 1910.1030(f)(1)(ii)(D).
explained in OSHA's summary and explanation of the
standard, the Centers for Disease Control and Prevention
("CDC") is the U.S. Public Health Service agency
"responsible for issuing guidelines and making
recommendations regarding . . . bloodborne pathogens."
Occupational Exposure to Bloodborne Pathogens, 56 Fed. Reg.
at 64004, at 64153 (Dec. 6, 1991). In 2006, the CDC's
Advisory Committee on Immunization Practices issued a report
providing guidance and recommendations to increase hepatitis
B vaccinations for adults. See A Comprehensive
Immunization Strategy to Eliminate Transmission of Hepatitis
B Virus Infection in the United States, Recommendations of
the Advisory Committee on Immunization Practices (ACIP) Part
II: Immunization of Adults, 55 Morbidity and Mortality Weekly
Report, No. RR-16 (Dec. 8, 2006),
https://www.cdc.gov/mmwr/indrr_2006.html. The CDC recommends
certain adults age twenty and older receive a three-shot
vaccination series, with the second shot to be given within
one to two months after the first shot and the third shot to
be given four to six months after the first shot.
Id. at 15.
receiving complaints about the Alachua DC's safety
program, OSHA conducted an inspection of the facility between
late September 2015 and early January 2016. The inspector
determined, through a review of documentation and interviews,
that Wal-Mart violated § 1910.1030(f), and issued
Wal-Mart two citations.
first citation alleged a serious violation of §
1910.1030(f)(1)(ii)(D) ("Citation One") and
proposed a fine of $5, 000, asserting 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 in accordance with the
recommendations of the U.S. Public Health Service, exposing
these employees to contracting the [h]epatitis B virus."
The second citation alleged a repeat violation of §
1910.1030(f)(2)(i) ("Citation Two") and proposed a
fine of $25, 000, asserting Wal-Mart did not offer eight
employees the hepatitis B vaccine within ten working days of
assignment to the SIRT team.
timely contested the citation and notification of penalty,
and a United States Department of Labor Administrative Law
Judge ("ALJ") presided over a one-day hearing. Six
witnesses testified, including an OSHA inspector, two members
of the SIRT team, Wal-Mart's former and current Asset
Protection Area Managers, and Wal-Mart's senior director
of compliance and safety.
issued a decision and order concluding the Secretary of Labor
("Secretary") had met his burden to establish
Wal-Mart had committed both alleged violations of the
regulation. The ALJ reclassified Citation One's violation
as "other than serious" and reduced the penalty to
$1, 000. The ALJ imposed a penalty of $25, 000 for Citation
petitioned for discretionary review with the Occupational
Safety and Health Review Commission ("Commission"),
and the Secretary filed a cross-petition. The Commission took
no action on either petition making the ALJ decision the
agency's final order. Wal-Mart filed a ...