Wal-Mart Stores East, LP v. Acosta, No. 17-2647 (8th Cir. 2019)
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The Eighth Circuit denied Wal-Mart's petition for review of OSHA's citation for two purported violations of the Occupational Safety and Health Act's regulation relating to bloodborne pathogens. OSHA alleged that Wal-Mart failed to comply with regulations pertaining to providing hepatitis B vaccinations to employees who voluntarily served on a Serious Injury Response Team (SIRT) at Wal-Mart's Alachua, Florida, distribution center.
The court held that substantial evidence supported the ALJ's finding that the collateral duty exception did not apply in part because SIRT employees did not respond to workplace injuries "generally at the location where the incident occurred" as subparagraph b. of the Occupational Exposure to Bloodborne Pathogens Enforcement Procedures required. The court also held that substantial evidence supported the ALJ's decision to uphold Citation One where Wal-Mart did not provide four SIRT members with the third dose of the vaccine. Furthermore, substantial evidence supported the ALJ's decision to uphold Citation Two, and the ALJ did not err by finding that Citation Two was a repeat violation, where Wal-Mart failed to articulate through record evidence how the failure to offer the hepatitis B vaccine to the SIRT employees resulted in a different hazard than occurred from the failure to offer the vaccine to the retail store employees in 2012.
Court Description: Grasz, Author, with Colloton and Beam, Circuit Judges] Petition for Review - OSHA. OSHA alleged Walmart failed to comply with regulations pertaining to providing hepatitis B vaccinations to employees who voluntarily served on a Serious Injury Response Team at its Alachua, Florida distribution center; the agency did not err in determining that the collateral duty exemption did not apply here as the employees did not respond to the injuries generally at the location where the incident occurred and did not meet one of the requirements for the exemption; evidence showed one of the two violation was warranted as Walmart did not provide four of the team members with a required third dose of the vaccine; evidence supported the agency's determination on the second violation that Walmart failed to offer certain employees the vaccine within ten working days of their assignment to the team; agency did not err in finding the violation was a repeat violation based on Walmart's settlement of a similar violation at a store in Rochester, New York in 2012.
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