OSHA, Vaccines, and the Workplace

Companies Cannot Avoid OSHA Regulations Pertaining to Mandatory Vaccines When Employees Render First Aid

The Centers for Disease Control and Prevention (CDC) guidelines for vaccinating employees who respond to medical incidents in the workplace are mandatory requirements under OSHA regulations, the Eighth Circuit has recently ruled.  The Circuit Court was tasked with whether Walmart was required to administer Hepatitis B vaccines to its employees who rendered first aid in the workplace. (Wal-Mart Stores East, LP v. Acosta, 919 F.3d 1073 (8th Cir. 2019).)

OSHA regulations (29 C.F.R. §1910.1030 et seq.) require employers to provide vaccinations to workers who may be exposed to bloodborne pathogens in the course of their jobs.  A Walmart in Florida received two citations when it violated these regulations after an OSHA inspection revealed that five employees who were members of a Serious Injury Response Team (SIRT) had not been offered the hepatitis B vaccine, and another eight employees assigned to the SIRT were not given the vaccine within 10 days of starting that assignment.

Exemptions to Mandatory Vaccines in Workplace

There is an exemption to this OSHA mandate if  three conditions are met: providing first aid is not the employee’s primary job duty, providing first aid is only a collateral duty that is performed solely in response to workplace injuries, and the employer has an “exposure control plan” that addresses the vaccination of and follow-up medical assessment for exposed workers.  Walmart argued that it was exempt from the vaccination requirements under the “collateral duty” exception under OSHA’s regulations.

The Eighth Circuit agreed with the lower court’s ruling, which reasoned that the exemption did not apply because of language contained in the second requirement: that workers who provide first aid as a collateral duty generally must be responding to an incident “at the location where the incident occurred.”  The evidence showed that SIRT employees handled the majority of incidents in a separate, dedicated first aid room. The exemption specifically does not apply to “designated first aid providers who render assistance on a regular basis, for example, at a first aid station, clinic, dispensary, or other location where injured employees routinely go for assistance.”  The Eighth Circuit agreed with the ALJ’s evaluation, noting that two SIRT members testified that they usually rendered first aid in this dedicated room, which was separated from the main work area by double doors and had the features of a medical clinic.

Court Rules CDC Recommendations on Vaccines are Binding

The court also rejected Walmart’s second argument that CDC guidelines for how employers should provide hepatitis B vaccinations were merely “recommendations” and were not binding on Walmart. The ALJ determined that Walmart failed to provide the third dose of the vaccine to several SIRT members on the timeline that the CDC requires. The CDC recommends that the third vaccine dose be given four to six months after the first one. But four SIRT members received their third doses between 21 and 24 months after their first shots.  The Eighth Circuit explained that the CDC guidelines in this sense were not merely recommendations because the OSHA regulations expressly incorporated those CDC recommendations as mandatory requirements by stating that hepatitis B vaccinations “shall” be provided according to the agency’s guidelines.

Vaccines in the Workplace

At Green & Schafle LLC, we recommend that everyone follow the advice of their treating physicians, employers and the Centers for Disease Control and Prevention (CDC) and vaccinate against deadly and contagious diseases whenever possible.  While vaccines offer a tremendous benefit to society, autoimmune diseases and shoulder injuries can occur as a result of receiving a vaccine (most commonly the flu shot or influenza vaccine) from your employer. We have skilled vaccine lawyers, licensed in the National Vaccine Injury Compensation Program and the United States Court of Federal Claims in Washington, D.C. who are ready to represent the interests of those in all 50 states.  Our licensed vaccine attorneys have been representing vaccine-injured clients nationwide for the last decade and they are actively involved in the Vaccine Injured Petitioners Bar Association, the national organization dedicated to the representation of individuals with vaccine injuries.

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