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Wal-Mart safety citation vacated on appeal


A federal appeals court has upheld the U.S. Department of Labor's interpretation of a rule requiring employers to conduct hazard assessments in the workplace but has vacated a citation and $1,700 penalty against a Wal-Mart Stores Inc. distribution center in Texas for inadequate notice of noncompliance.

In October 2006, Bentonville, Arkansas-based Wal-Mart performed a hazard assessment of its distribution center in Searcy, Arkansas, as required under federal occupational safety and health standards that mandate an employer assess the workplace to determine if hazards are present or likely to be present that require the use of personal protective equipment, according to court documents. The Searcy distribution center is one of about 120 centers operated by the retailer in the United States.

In January 2008, the U.S. Occupational Safety and Health Administration audited the Searcy facility as part of the retailer's application to enter the facility into the agency's Voluntary Protection Program. The program recognizes employers and workers in the private industry and federal agencies who have implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries.

In February 2008, OSHA inspected a Wal-Mart distribution center in New Braunfels, Texas, and cited the retailer in August of that year for failing to conduct a hazard assessment for the facility.

An administrative law judge affirmed the violation and concluded that OSHA reasonably interpreted the rule to require Wal-Mart to conduct an individual hazard assessment of its distribution center in New Braunfels despite alleged similarities to the Searcy facility. The Occupational Safety and Health Review Commission also upheld the violation by concluding that the retailer had violated the rule by failing to personally observe that conditions at the two facilities were identical.

The 5th U.S. Circuit Court of Appeals in New Orleans ruled on Wednesday that the agency and the commission's interpretations of the rule were “reasonable,” citing a U.S. Supreme Court precedent in a 1991 decision that an agency's interpretation of its own rule is “entitled to substantial deference.”

However, the appeals court also vacated the citation and $1,700 penalty after finding that a reasonable employer in Wal-Mart's position would not have known its practices were violating the rule due to OSHA's recognition of the Searcy location as achieving VPP status.

“Thus, Wal-Mart has shown that through the VPP it had a fair expectation that OSHA had found its practices satisfactory,” the court said in its decision.

“We appreciate that the Court of Appeals has determined that OSHA's ruling and the penalty assessed is unfair in these circumstances,” the retailer said in a statement. “We are reviewing the ruling and evaluating our options.”

OSHA did not comment prior to publication.

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