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Circuit court upholds failure to vaccinate citations against Walmart


A circuit court denied Wal-Mart Stores Inc.’s petition to review more than $25,000 in citations levied against it for allegedly failing to protect employees from bloodborne pathogens.

In Wal-Mart Stores East LP v. Secretary of Labor, a three-judge panel of the 8th U.S. Circuit Court of Appeals unanimously affirmed on Wednesday an administrative law judge’s holding that two U.S. Occupational Safety and Health Administration violations should stand.

OSHA regulations require employers to make the hepatitis B vaccination series available to all workers who have occupational exposure to bloodborne pathogens. Wal-Mart Stores East LP of Bentonville, Arkansas, maintains a Serious Injury Response Team consisting of employees who voluntarily agree to respond to medical incidents and provide routine first-aid care. After receiving safety complaints about the company’s Alachua, Florida, distribution center, OSHA conducted an inspection between September 2015 and January 2016, and investigators issued a serious violation citation with a proposed fine of $5,000 for five SIRT members who could “potentially” have been exposed to bloodborne pathogens because they allegedly were not provided with hepatitis B vaccinations. The second citation alleged a repeat violation carrying a fine of $25,000, alleging that Walmart did not offer eight employees the vaccine within 10 days of their assignment to the SIRT team.

Walmart challenged the citations, and an administrative law judge reclassified the first citation as “other than serious” and reduced the fine to $1,000, but upheld the $25,000 fine. Walmart petitioned the Occupational Safety and Health Review Commission for review, but the commission declined to take action. Walmart then appealed to the 8th U.S. Circuit Court of Appeals, which affirmed the ALJ’s decision.

Walmart argued that it was not required to provide the vaccinations because it fit within OSHA’s collateral duty exemption, which offers exemptions for employees whose primary job is not as a first aid responder and when care is generally rendered at the location the accident occurred. The ALJ found that the great majority of first aid was administered in the “SIRT Room” — a first-aid room separated from the main work area by double doors — and that, therefore, the collateral duty exemption did not apply.

The appellate court agreed, holding that the ALJ did not abuse its discretion in rejecting Walmart’s broad interpretation of the exemption. The court further affirmed the ALJ’s ruling that the company failed to provide the vaccination series to SIRT members, noting that it did not provide the third dose of the vaccine to four members until the inspection.

The court also affirmed the ALJ’s finding that Walmart failed to make the hepatitis B vaccine available to certain SIRT volunteers within 10 working days of assignment, and that the violation was a repeat because the company had entered into a commission-approved settlement in 2012 for allegedly substantially similar violations at a Walmart store.

The appellate court held that because Walmart failed to show how the failure to offer SIRT members the hepatitis B vaccination resulted in a different hazard than the failure to vaccinate retail store employees in 2012, that it was a repeat violation and affirmed.

Wal-Mart spokesperson Randy Hargrove said that the safety of customers and employees is a top priority for the company and that Wal-Mart has bloodborne pathogen safety processes in place at all of its facilities in the country.

“While we are disappointed with the court’s ruling, we accept it and look forward to putting this matter behind us,” he said.




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