541 F.3d 193 (3rd Cir. 2008), 06-4810, Secretary of Labor v. Beverly Healthcare-Hillview

Docket Nº06-4810.
Citation541 F.3d 193
Party NameSECRETARY OF LABOR, Petitioner v. BEVERLY HEALTHCARE-HILLVIEW; Occupational Safety & Health Review Commission, Respondents.
Case DateSeptember 04, 2008
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 193

541 F.3d 193 (3rd Cir. 2008)

SECRETARY OF LABOR, Petitioner

v.

BEVERLY HEALTHCARE-HILLVIEW; Occupational Safety & Health Review Commission, Respondents.

No. 06-4810.

United States Court of Appeals, Third Circuit.

September 4, 2008

Argued June 4, 2008.

Page 194

Ronald J. Gottlieb (Argued), Charles F. James, Nathaniel I. Spiller, United States Department of Labor, Office of the Solicitor, Washington, DC, Attorneys for Petitioner.

Michael S. Glassman, (Argued), Jennifer K. Swartz, Dinsmore & Shohl, Cincinnati, OH, Sheldon N. Sandler, Young, Conaway, Stargatt & Taylor, Wilmington, DE, Attorneys for Respondent, Beverly Healthcare-Hillview.

Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges.

OPINION

FISHER, Circuit Judge.

This case originates from the issuance of two citations by the Occupational Safety and Health Administration (“OSHA" ) to Beverly Healthcare-Hillview (“Beverly" ) for failure to compensate employees for travel expenses and non-work time spent receiving treatment pursuant to the Bloodborne Pathogens Standard, which requires employers to make treatment available “at no cost to employees" for occupational exposure to bloodborne pathogens. Beverly challenged these citations, arguing that the “at no cost" provision should be read narrowly and did not include such costs. The ALJ disagreed and upheld the citations. Beverly appealed to the Occupational Safety and Health Review Commission (“Commission" ), which reversed, finding that Beverly did not have fair notice of the Secretary of Labor's (“Secretary" ) broad interpretation. The Secretary timely filed a petition for review. For the reasons that follow, we will grant the petition and vacate the decision of the Commission.

I.

A.

In 1970, Congress adopted the Occupational Safety and Health Act (“OSH Act" )

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after finding that “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments." 29 U.S.C. § 651(a). The stated purpose for the adoption of the OSH Act was “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions to preserve our human resources." Id. § 651(b). Under the OSH Act, the Secretary is empowered to “set mandatory occupational safety and health standards" for employers and to issue citations when employers fail to comply with these standards. Id. §§ 651(b)(3), 655, 658(a). Violations of these standards are termed “willful," “repeated," “serious," or “not serious." Id. § 666. “Not serious" penalties may be subject to civil fines of up to $7,000. Id. § 666(c). If an employer wishes to contest a citation, it is entitled to a hearing before an Administrative Law Judge (“ALJ" ). 29 U.S.C. § 661(j). A party that disputes the decision of the ALJ may petition the Commission for discretionary review. Id.; 29 C.F.R. § 2200.91. An aggrieved party may petition the Court of Appeals for review of the Commission's final order. Id.§ 661.

In 1991, the Secretary promulgated the Bloodborne Pathogens Standard (“BPS" ), 29 C.F.R. § 1910.1030, pursuant to a specific Congressional directive aimed at combating “occupational exposures to the hepatitis B virus, the human immunodeficiency virus and other bloodborne pathogens." Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, Pub.L. No. 102-170 § 100, 105 Stat. 1107, 1113 (1992). In drafting the BPS, the Secretary acted under the authority granted by the OSH Act to

“where appropriate ... prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure."

29 U.S.C. § 655(b)(7). The BPS applies to all “occupational exposure" which might be “reasonably anticipated [to lead to employee] contact with blood or other potentially infectious materials." 29 C.F.R. § 1910.1030(a), (b). Such “exposure incidents" include “needlesticks," one of a number of events that involve “piercing mucous membranes or the skin barrier." Id. § 1910.1030(b). Pursuant to subsection (f)(1)(i) of the BPS, “[t]he employer shall make available the hepatitis B vaccine and vaccination series to all employees who have occupational exposure, and post-exposure evaluation and follow-up to all employees who have had an exposure incident." Additionally, under subsection (f)(1)(ii),

[t]he employer shall ensure that all medical evaluations and procedures including the hepatitis B vaccine and vaccination series and post-exposure evaluation and follow-up, including prophylaxis, are:

(A) Made available at no cost to the employee;

(B) Made available to the employee at a reasonable time and place[.]

Id. § 1910.1030(f)(1)(ii). The preamble to the BPS explains the impetus for requiring employers to pay for the costs of their employees exposure incidents. It states:

“Numerous testimony and comment on the proposed rule stated the necessity that Hepatitis B vaccination and post-exposure evaluation and follow-up be made available by the employer at no cost to the employee.... This is consistent

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with OSHA policy, as stated in the Occupational Safety and Health Act of 1970 (OSH Act).... In addition, some commenters noted that an important factor in successful vaccination programs was providing the vaccination at no cost to the employee."

56 Fed.Reg. 64, 153 (1991).

OSHA has subsequently issued a series of compliance directives, stating that “[t]he term ‘at no cost to the employee’ means, among other things, no ‘out-of-pocket’ expense to the employee." See OSHA Compliance Directive CPL 2-2.69; CPL 2-2.44C; CPL 2-2.44D.1In addition, OSHA's Director of Compliance Programs issued an opinion letter on July 7, 1999 (“1999 OSHA opinion letter" ), in which it addressed two specific questions regarding application of the BPS: (1) “[m]ust the employer either provide or pay for transportation to and from the site where the Hepatitis B vaccination will be administered?" and (2) “[a]re all activities associated with obtaining a Hepatitis B vaccination, in fact, work functions and, consequently, is all time associated with receipt of vaccination work time?" In response to the first question, OSHA stated that “[w]hile transportation may not need to be provided by the employer, its cost must be covered by the employer." The letter also addressed the second question, explaining that “when receiving the vaccine or commuting to have it administered, employees must be considered ‘on-duty.’ " It is undisputed that the regulation, its preamble, the compliance directives, and the 1999 OSHA opinion letter were publicly available at all relevant times during the course of this litigation.

B.

Beverly owns and operates a nursing home in Altoona, Pennsylvania. Beverly employs approximately 110 people including Vicki Pacovsky and Darryl Kosanovich, both of whom work as nurses at the nursing home. On December 8, 2002, Pacovsky received a “needlestick" while at the workplace, and on January 4, 2004, Kosanovich also received a “needlestick" while at work. Each sought treatment at the end of his or her respective shift at a designated off-site medical facility, and each returned to the off-site facility for periodic follow-up treatment during non-work hours. Beverly paid for the cost of the medical evaluations and procedures, but did not reimburse the employees for the non-work hours they spent receiving either the initial or follow-up treatments. Beverly also did not compensate the employees for travel time or expenses with respect to these treatments.

After each incident, OSHA inspected the workplace and issued an “other-than-serious" citation for violation of 29 C.F.R. § 1910.1030(f)(1)(ii)(A), due to Beverly's failure to provide post-exposure evaluation and testing “at no cost to the employee." 2 Beverly timely contested these citations.

On March 28, 2005, the ALJ issued a decision and order upholding the citations. She held that the “at no cost" language required Beverly to pay for travel time and expenses. She also held that Beverly was required to compensate Pacovsky and Kosanovich for the non-work time they

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spent undergoing the evaluations and procedures. Her interpretation relied on the dictionary definition of “cost" and the preamble to the BPS, stating that the purpose of the regulation was to induce compliance and thereby reduce the number of infections. She therefore determined that the employees incurred “costs" by expending time and effort securing post-exposure evaluation and treatment outside of work hours and traveling to and from the treatment facility. She opined that these costs operated as a disincentive to employees' voluntary participation in the program, and would therefore defeat its purpose.

Based on this analysis, the ALJ determined that the term “at no cost to the employee" was clear and unambiguous, and that regardless, any ambiguity was resolved by the Secretary's reasonable interpretations as set forth in the current OSHA compliance directive, two predecessor directives, and the 1999 OSHA opinion letter. She also found that the Secretary had provided constitutionally adequate notice that the BPS required employers to compensate employees for the travel expenses and non-work time related to their evaluation and treatment. She therefore ordered Beverly to reimburse Pacovsky and Kosanovich for the time spent receiving evaluation and treatment during non-work hours and for travel expenses.

The Commission granted Beverly's petition for discretionary review. A two-member majority found that the “at no cost" provision of the BPS was ambiguous, but that the...

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    ...U.S. at 514; Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1239-40 (9th Cir. 1984); see also Sec'y of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193 (3d Cir. 2008). Consistent with this authority, OSHA has largely required employers to bear the costs of the provisions of this ETS, includi......

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