8th Cir. upholds Walmart OSHA fine for failing to vaccinate emergency response employees
- A federal appeals court has declined to reverse fines imposed on Walmart for alleged violations of U.S. Occupational and Safety Health Administration (OSHA) regulations. Specifically, the court said it found no serious error with an administrative law judge's (ALJ) finding that Walmart failed to properly vaccinate members of its Serious Injury Response Team (SIRT) against hepatitis B (Wal-Mart Stores East v. Acosta, No. 17-2647 (8th Cir. March 28, 2019)).
- SIRT is composed of employees who volunteer to respond to medical incidents and provide first-aid care until first responders arrive, according to court documents. An OSHA investigation determined that Wal-Mart failed to make the hepatitis B vaccine available to all employees who have occupational exposure and issued two citations. The first noted a "serious" violation because five SIRT members allegedly were "potentially exposed with an occupational exposure to bloodborne pathogens" because Walmart did not provide the three-shot vaccinations in accord with the schedule suggested by the U.S. Public Health Service. The second noted a repeat violation because eight employees allegedly were not offered the hepatitis B vaccine within 10 working days of assignment to the team.
- An ALJ concluded that Walmart committed both violations but reclassified one of the violations and reduced the other, resulting in a $26,000 fine. On review, the 8th Circuit upheld the ALJ's findings.
OSHA has a bloodborne pathogen regulation that includes standards for the prevention of hepatitis B in the workplace, the 8th Circuit noted in its opinion. The regulation, the court said, requires, among other things, that employers make the hepatitis B vaccine and vaccination series available to employees who have occupational exposure within 10 days of the initial assignment. It must be offered on the vaccination schedule recommended by the U.S. Public Health Service and employers provide post-exposure evaluation, it explained. Occupational exposure means reasonably anticipated contact with blood or other potentially infectious materials that can happen when employees perform their job, the court said.
Wal-Mart argued, among other things, that it shouldn’t have been cited because OSHA's "collateral duty" exemption applied. The ALJ disagreed, in part because SIRT employees did not respond to workplace injuries at the location where the incident occurred; instead, most of the first aid rendered occurred in a first-aid room. The appeals court agreed with the ALJ, noting that the exception does not apply to designated first aid providers who provide assistance on a regular basis at a first aid station.
While the 8th Circuit's opinion addresses a narrow area of OSHA standards, employers should note that the agency remains active. Just how active, however, is unclear. The National Employment Law Project says that enforcement activity has decreased under the Trump administration, but others aren't so sure. Maximum fines, however, are up, as Jackson Lewis’ OSHA Law Blog notes.
Courtney Malveaux, a principal with the firm, also recently discussed the hidden costs of OSHA citations. When employers receive a "serious" citation, they often rush into a settlement without considering potential legal defenses – a move that saves money in the short-term but could cost much more in the long term because it can lead to a finding of "repeat" violations and tenfold penalty increases, he said. The "smart play” for employers is to look at the legal merits of the citation and consider contesting it if a viable defense exists.