April 25, 2019, Trial News | The American Association For Justice

April 25, 2019, Trial News

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Walmart cannot skirt OSHA regs for vaccinating employees who render first aid

Kate Halloran

photo of hypodermic needle drawing liquid from bottle

The Centers for Disease Control and Prevention (CDC) guidelines for vaccinating employees who respond to medical incidents at work are not simply “recommendations” but are mandatory requirements under OSHA regulations, the Eighth Circuit has ruled. In an appeal of OSHA fines assessed against Walmart for its handling of hepatitis B vaccinations for employees who render first aid, the court found that the CDC’s recommendations for how those vaccinations should be administered had been incorporated into OSHA regulations and therefore were binding on the employer.
 

The Centers for Disease Control and Prevention (CDC) guidelines for vaccinating employees who respond to medical incidents at work are not simply “recommendations” but are mandatory requirements under OSHA regulations, the Eighth Circuit has ruled. In an appeal of OSHA fines assessed against Walmart for its handling of hepatitis B vaccinations for employees who render first aid, the court found that the CDC’s recommendations for how those vaccinations should be administered had been incorporated into OSHA regulations and therefore were binding on the employer. (Wal-Mart Stores East, LP v. Acosta, 919 F.3d 1073 (8th Cir. 2019).)

OSHA regulations (29 C.F.R. §1910.1030 et seq.) require employers to provide vaccinations to workers who may be exposed to bloodborne pathogens in the course of their jobs—for example, when responding to an emergency medical incident or providing first aid before trained medical personnel arrive. A Walmart warehouse in Florida was cited for two violations of these regulations after an OSHA inspection revealed that five employees who were members of a Serious Injury Response Team (SIRT) had not been offered the hepatitis B vaccine, and another eight employees assigned to the SIRT were not given the vaccine within 10 days of starting that assignment. OSHA fined Walmart, which filed an administrative appeal to the U.S. Department of Labor. The administrative law judge (ALJ) determined that the burden for establishing the violations had been met. Walmart appealed to the Occupational Safety and Health Review Commission, which opted to take no action, and then to the Eighth Circuit.

Walmart argued that it was exempt from the vaccination requirements under the “collateral duty” exception under OSHA’s regulations. The exemption applies when three conditions are met: providing first aid is not the employee’s primary job duty, providing first aid is only a collateral duty that is performed solely in response to workplace injuries, and the employer has an “exposure control plan” that addresses the vaccination of and follow-up medical assessment for exposed workers.

The ALJ, however, reasoned that the exemption did not apply because of language contained in the second requirement: that workers who provide first aid as a collateral duty generally must be responding to an incident “at the location where the incident occurred.” The evidence showed that SIRT employees handled the majority of incidents in a separate, dedicated first aid room. The exemption specifically does not apply to “designated first aid providers who render assistance on a regular basis, for example, at a first aid station, clinic, dispensary, or other location where injured employees routinely go for assistance.” The Eighth Circuit agreed with the ALJ’s evaluation, noting that two SIRT members testified that they usually rendered first aid in this dedicated room, which was separated from the main work area by double doors and had the features of a medical clinic.

The court also rejected the defendant’s second argument that CDC guidelines for how employers should provide hepatitis B vaccinations were merely “recommendations” and were not binding on Walmart. The ALJ determined that Walmart failed to provide the third dose of the vaccine to several SIRT members on the time line that the CDC requires. The CDC recommends that the third vaccine dose be given four to six months after the first one. But four SIRT members received their third doses between 21 and 24 months after their first shots.

Walmart contended that the ALJ improperly elevated the recommendations to mandatory requirements as the CDC guidance document uses the term “recommendations” and that rules of statutory interpretation prevent a recommendation from becoming an enforceable requirement without specific language—such as the use of “shall” instead of “should”—or a formal rulemaking. The Eighth Circuit explained that while this was true for the CDC’s enforcement of the recommendations, it did not apply to the OSHA regulations because that agency expressly incorporated those CDC recommendations as mandatory requirements by stating that hepatitis B vaccinations “shall” be provided according to the agency’s guidelines. The court also noted that the agency used formal notice-and-comment rulemaking to promulgate the regulations and therefore did not abuse its discretion in adding this language to §1910.1030.