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Wal-Mart Stores East, LP v. Acosta

United States Court of Appeals, Eighth Circuit

March 28, 2019

Wal-Mart Stores East, LP, doing business as Walmart Distribution Center # 7035 Petitioner
v.
Alexander Acosta, Secretary of Labor Respondent

          Submitted: September 26, 2018

          Petition for Review of an Order of the Occupational Safety and Health Review Commission

          Before COLLOTON, BEAM, and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE.

         The 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.

         I. Background

         OSHA's 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. § 1910.1030(b).

         The 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).

         The 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).

         As 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.

         After 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.

         The 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.

         Wal-Mart 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.

         The ALJ 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 Two.

         Wal-Mart 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 ...


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