919 F.3d 1073
8th Cir.2019Background
- OSHA inspected Wal‑Mart Distribution Center #7035 (Alachua, FL) and cited Wal‑Mart for two violations of the bloodborne pathogen standard, 29 C.F.R. § 1910.1030, relating to hepatitis B vaccinations for volunteer Serious Injury Response Team (SIRT) members.
- SIRT members performed first aid as a collateral duty; OSHA and the parties agreed they had occupational exposure, triggering the obligation to make hepatitis B vaccine "available."
- Citation One alleged failure to provide the hepatitis B series in accordance with U.S. Public Health Service/CDC recommendations (three‑dose schedule); Citation Two alleged failure to offer the vaccine within 10 working days of assignment.
- ALJ upheld both citations (reclassifying Citation One to "other than serious" and imposing adjusted penalties); the Commission denied discretionary review, making the ALJ decision final.
- On review the Eighth Circuit applied the substantial‑evidence standard to ALJ factual findings and reviewed legal conclusions for being arbitrary, capricious, or not in accordance with law.
Issues
| Issue | Plaintiff's Argument (Wal‑Mart) | Defendant's Argument (Secretary/OSHA) | Held |
|---|---|---|---|
| Applicability of OSHA's "collateral duty" enforcement exception | Wal‑Mart: SIRT members performed first aid only as a collateral duty and thus fit the BBP Enforcement Procedures' exemption, barring citations. | OSHA: The exemption does not apply because SIRT primarily treated employees in a separated SIRT room (not "at the location where the incident occurred"). | Held: Exemption inapplicable — substantial evidence supports ALJ finding SIRT treated employees in a clinic‑like SIRT room; ALJ properly rejected Wal‑Mart's broad reading. |
| Whether CDC recommendations in the regulation are mandatory | Wal‑Mart: The word "recommendation" shows CDC guidance is nonmandatory; ALJ erred by treating CDC timetable as binding. | OSHA: The regulation (promulgated via §6(b) rulemaking) expressly requires employers to provide vaccines according to U.S. Public Health Service/CDC recommendations. | Held: The regulation makes CDC recommendations mandatory; no categorical bar to incorporating recommendations into a binding standard; substantial evidence supports Citation One. |
| Use of lack of vaccination documentation to prove failure to offer vaccine | Wal‑Mart: ALJ impermissibly shifted burden to Wal‑Mart by inferring non‑offer from gaps in documentation. | OSHA: Testimony from Wal‑Mart manager admitting noncompliance plus documentation gaps support inference that offers were not made. | Held: No improper burden shift; combined testimony and record support ALJ's finding that Wal‑Mart failed to offer vaccine within 10 working days. |
| Repeat designation of Citation Two | Wal‑Mart: Prior violation was at a retail store and conditions differ; does not justify repeat designation. | OSHA: Prior stipulated violation of the same standard at a Wal‑Mart location supports repeat classification; hazards are the same (risk of hepatitis B). | Held: Repeat designation affirmed — prior violation involved same standard at the same corporate entity and Wal‑Mart failed to rebut substantial similarity. |
Key Cases Cited
- Perez v. Loren Cook Co., 803 F.3d 935 (8th Cir.) (standards for reviewing ALJ factual findings and legal conclusions)
- Dakota Underground, Inc. v. Sec’y of Labor, 200 F.3d 564 (8th Cir.) (scope of appellate review when Commission denies discretionary review)
- Omaha Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779 (8th Cir.) (definition of substantial evidence)
- Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir.) (limits on converting voluntary consensus recommendations into mandatory standards absent proper rulemaking)
- Wal‑Mart Stores, Inc. v. Sec’y of Labor, 406 F.3d 731 (D.C. Cir.) (repeat citation principles across corporate locations)