Wal-Mart Distrib. Center v. OSHC, No. 15-60462 (5th Cir. 2016)Annotate this Case
Wal-Mart petitions for review of the decision of the Commission finding that the company failed to comply with 29 C.F.R. 1910.132(d)(1), which requires the company to perform a hazard assessment of its distribution center. The court concluded that the regulation, the preamble, and the non-mandatory appendix fail to resolve the ambiguity as to whether Wal-Mart may use its Searcy hazard assessment as the hazard assessment for the allegedly identical New Braunfels location. In such circumstances, the court gives substantial deference to an agency’s interpretation of its own regulation. While section 1910.132(d)(1) may not require an employer to conduct a full-fledged hazard assessment of all identical workplaces, it is reasonable to interpret section 1910.132(d)(1) to require an employer to confirm that workplaces are indeed identical before a hazard assessment for one workplace can qualify as the hazard assessment for another location. Therefore, the court agreed with the Commission’s conclusion that the Secretary’s interpretation of section 1910.132(d)(1) is reasonable. However, because Wal-Mart lacked adequate notice of that interpretation, the court vacated the citation and the related penalty.