Beverly Healthcare-Hillview

Plain-English summary

Two nurses at Beverly's nursing home received needlesticks and obtained post-exposure medical treatment during non-working hours. Beverly paid the medical charges but did not pay the employees for their time or travel expenses. The Commission found that the bloodborne-pathogens requirement to provide medical evaluations and procedures “at no cost” was ambiguous. It accepted OSHA's interpretation that the phrase included employee time and travel expenses, but held that Beverly lacked fair notice because the standard and OSHA's published guidance did not state that obligation with sufficient clarity. The Commission vacated both other-than-serious citation items, which carried no monetary penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1030(f)(1)(ii)(A)
• Outcome: The Commission vacated both citation items and the reimbursement order; no monetary penalty had been assessed.
• Key point: A reasonable agency interpretation cannot support a citation when the employer lacked fair notice of the specific obligation.

Full text (OSHRC public release)

Beverly Healthcare-Hillview, Docket Nos. 04-1091 & 04-1092

DECISION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 04-1091 & 04-1092

BEVERLY HEALTHCARE-HILLVIEW,

Respondent.

APPEARANCES:

Howard M. Radzely, Solicitor; Joseph M. Woodward, Associate Solicitor; Charles
James, Counsel for Appellate Litigation; Daniel J. Mick, Counsel for Regional Trial
Litigation; Mark J. Lerner, Attorney; U.S. Department of Labor, Washington, DC

For the Complainant

Michael S. Glassman, Esq.; Jennifer J. Swartz, Esq.; Dinsmore & Shohl, LLP, Cincinnati,
OH

For the Respondent

DECISION

Before: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.

BY RAILTON, Chairman; THOMPSON, Commissioner:

Beverly Healthcare-Hillview (“Beverly”), a nursing home in Altoona,
Pennsylvania, was cited by the Occupational Safety and Health Administration (OSHA)
for violating 29 C.F.R. § 1910.1030(f)(1)(ii)(A), a provision of the bloodborne pathogens
(BBP) standard. That provision requires employers to make available medical
evaluations and procedures at no cost to employees.

At issue before the Commission is
whether the phrase “at no cost” requires an employer to pay for an employee’s time spent
and travel expenses incurred in seeking authorized medical treatment.

Based upon our review of the language, we conclude that the cited provision of
the BBP standard is ambiguous. We also conclude that while the Secretary’s
interpretation of the provision to require payment for employee time and travel expenses
incurred in seeking medical treatment is reasonable, Beverly lacked fair notice of this
interpretation. Accordingly, we vacate the citation. 

Background

Two of Beverly’s Licensed Practical Nurses received needle sticks while at work,
potentially exposing them to the risk of infectious disease. At the end of their shifts, both
employees sought treatment at the medical clinic that treats Beverly’s employees, but
they scheduled appointments during their non-working hours, in part, because the clinic
was not open during their shifts. Beverly paid for both employees’ medical treatments,
but not for their time and travel expenses incurred in obtaining treatment.

The case was submitted to Judge Covette Rooney on cross motions for summary
judgment. Beverly argued that the “at no cost” provision of the BBP standard requires an
employer to pay only for the actual medical treatment. The Secretary asserted that the
“at no cost” provision requires an employer to pay for the medical treatment, as well as
the employee’s time and travel expenses incurred in seeking the treatment.

The judge found that the provision “at no cost” clearly and unambiguously
required Beverly to compensate its employees for their time and travel expenses. She
granted the Secretary’s motion and ordered Beverly to reimburse the two employees.
The judge further concluded that any ambiguity in the provision was addressed by the
Secretary’s reasonable interpretation, which she found was entitled to deference.

Discussion

When the meaning of a provision such as “at no cost” is in dispute, the
Commission looks first to the text and structure of the standard. See Unarco Commercial
Products , 16 BNA OSHC 1499, 1502, 1993-95 CCH OSHD ¶ 30,294, at p. 41,732 (No.
89-1555, 1993) ( Unarco ). If the meaning of the language is “sufficiently clear”, the
inquiry ends there. Unarco , 16 BNA OSHC at 1503, 1993-95 CCH OSHD at p. 41,732.
If no determination can be reached, we look to the legislative history of the text. Unarco ,
16 BNA OSHC at 1502, 1993-95 CCH OSHD at p. 41,732. If this inquiry into the
meaning of the text is not dispositive, the Commission will defer to the Secretary’s
reasonable interpretation of standards such as the one at issue here. Id.

Ambiguity of the Cited Provision

The standard cited here requires an employer to “ensure that all medical
evaluations and procedures … are [m]ade available at no cost to the employee.”
29 C.F.R. § 1910.1030(f)(1)(ii)(A). The Secretary would have us define “cost” as,
“whatever must be given, sacrificed, suffered, or foregone to secure a benefit or
accomplish a result.” Webster’s Third New Int’l Dictionary (1986). This definition,
which essentially requires the removal of all obstacles to reach a goal, contrasts sharply
with Beverly’s narrow reading of the term, also from Webster’s, as only “the amount …
charged or engaged to be paid or given for anything bought … .” Indeed, as the Supreme
Court has recognized, there are a number of alternative usages of the word “cost.” See
Verizon Commc’ns, Inc. v. FCC , 535 U.S. 467, 500 (2002) (citing Strickland v. Comm’r,
Maine Dep’t of Human Servs. , 96 F.3d 542, 546 (1996) (“the word ‘cost’ is a chameleon,
capable of taking on different meanings, and shades of meaning, depending on the
subject matter and the circumstances of each particular usage.”)).

Standing alone the language of the cited standard does not clearly indicate which
sense of the word the Secretary has employed . See Nat’l R.R. Passenger Corp. v. Boston
& Me. Corp ., 503 U.S. 407, 418 (1992) (standard is open to interpretation when
alternative dictionary definitions of a word each make sense under the standard). There
is also nothing in the remainder of the BBP standard that provides any further
clarification of the phrase “at no cost.” The phrase does arise five more times in the
standard, but none of those instances provide us with any basis from which to choose one
definition over another.

The standard’s legislative history also fails to resolve the standard’s ambiguity.
The Secretary claims that two sections in the standard’s preamble clearly support her
interpretation. However, the language she cites in the “Summary and Explanation”
section merely repeats the “at no cost” requirement but does not explain it. See
Occupational Exposure to Bloodborne Pathogens, 56 Fed. Reg. 64,004, 64,152-153 (Dec.
6, 1991) (codified at 29 C.F.R. § 1910.1030). Information more relevant to an
employee’s time and travel expenses is incorporated by reference in the “Costs of
Compliance” section, but that data is largely found in an unpublished appendix buried
within the chain of rulemaking documents. See Caterpillar, Inc. , 15 BNA OSHC 2153,
2162, 1993 CCH OSHD ¶ 29,962, at p. 40,995 (No. 87-0922, 1993) (“[t]o expect
employers to heed one sentence buried in 30 pages of an interim rulemaking document is
unreasonable”). An examination of that material reveals no reference to the expenses
associated with an employee seeking medical treatment, nor is “at no cost” otherwise
explained. For these reasons, we disagree with the judge and conclude that the phrase “at
no cost” in § 1910.1030(f)(1)(ii)(A) is ambiguous.

Reasonable Interpretation

Once a standard like the one at issue here is determined to be ambiguous, the
Commission will normally “defer to the Secretary’s reasonable interpretation of the
regulation that otherwise ‘sensibly conforms to the purpose and wording of the regulation
[]’, taking into account ‘whether the Secretary has consistently applied the interpretation
embodied in the citations,’ ‘the adequacy of notice to regulated parties,’ and ‘the quality
of the Secretary’s elaboration of pertinent policy considerations.’” Union Tank Car Co. ,
18 BNA OSHC 1067, 1069, 1997 CCH OSHD ¶ 31,445, at p. 44,472 (No. 96-0563,
1997) (citing Martin v. OSHRC , 499 U.S. 144, 150, 157-58 (1991)) ( Union Tank ). We
consider each of these factors below.

First, we agree with the judge that the Secretary’s interpretation of the BBP
standard as requiring employees to be compensated for both the time required for
treatment and the travel expenses incurred in obtaining the treatment conforms to the
purpose and wording of the standard. The standard as a whole is “designed to ensure that
all medical evaluations and procedures … are [m]ade available at no cost to the
employee.” Occupational Exposure to Bloodborne Pathogens, 56 Fed. Reg. at 64,152
(emphasis added). Absent such compensation, the likelihood that an employee will
obtain the necessary medical treatment declines. See Phelps Dodge Corp. , 11 BNA
OSHC 1441, 1983 CCH OSHD ¶ 26,552 (No. 80-3203, 1983), aff’d , 725 F.2d 1237,
1239 (9th Cir. 1984) ( Phelps Dodge ).

Second, we see nothing in the record to indicate that the Secretary’s interpretation
here is inconsistent with any of her previous pronouncements. Union Tank , 18 BNA at
1069, 1997 CCH OSHD at p. 44,472. In the three instructions in evidence, the Secretary
emphasizes that the phrase “at no cost” in the cited provision means that an employee
incurs no out-of-pocket expenses. OSHA Instruction CPL 2-2.44C (Mar. 6, 1992);
OSHA Instruction CPL 2-2.44D (Nov. 5, 1999); OSHA Instruction CPL 2-2.69 (Nov. 27,
2001). A 1999 letter of interpretation provides that an employee’s “out of pocket”
expenses include an employee’s travel expenses, and that the employee is considered
“on-duty” when receiving the vaccine or commuting to have it administered. U.S. Dep’t
of Labor, Ltr. of Interpretation, International Association of Firefighters (July 7, 1999)
(1999 letter).

Third, we find that the Secretary has elaborated pertinent policy reasons for her
interpretation. As the preamble to the standard states, “[29 C.F.R. § 1910.1030(f)] is
designed to protect employees from infection caused by bloodborne pathogens by
requiring the employer to … ensure that the employee receives appropriate medical
follow-up after an exposure incident.” Occupational Exposure to Bloodborne Pathogens,
56 Fed. Reg. at 64,152. The preamble also emphasizes that “an important factor in
successful vaccination programs was providing the vaccination at no cost to the
employee.” Id . at 64,153. The Secretary’s interpretation of the “at no cost” language
likely enhances these policy concerns. For all of these reasons, we conclude that the
Secretary’s interpretation of the standard is reasonable.

Nonetheless, we find that Beverly lacked notice of the Secretary’s interpretation
because neither § 1910.1030(f)(1)(ii)(A) nor the documents the Secretary has published
interpreting the standard explain, with “ascertainable certainty”, what this standard
requires of employers. See Gates & Fox Co. v. OSHRC , 790 F.2d 154, 156 (D.C. Cir.
1986) (citing Diamond Roofing Co. v. OSHRC , 528 F.2d 645, 649 (5th Cir. 1976)).
Although the Secretary’s instructions indicate that she has consistently interpreted the
cited standard to mean no “out of pocket” expenses incurred by an employee, these
instructions fail to inform an employer what is required with the same precision and
clarity that the Secretary has summoned up in prosecuting this case. This is also true of
the preamble to the BBP final rule, which clearly identifies the goals of disease
prevention and vaccine program participation, but falls short of explaining what “at no
cost” means.

Nor was notice provided by the Secretary’s 1999 letter. Beverly points out that
this letter, which states that travel expenses are compensable under the BBP standard and
that an employee is considered “on-duty” when receiving the vaccine or commuting to
have it administered, is at odds with a 1987 Department of Labor interpretative opinion
letter. According to the 1987 letter, which interprets a regulation published under the
Fair Labor Standards Act (FLSA), “[for] time spent waiting for or receiving medical
attention or treatment to be compensable, the visit to the doctor must be at the direction
of the employer and it must occur during the employee’s normal work hours on days
when the employee is working .” U.S. Dep’t of Labor, Ltr. of Interpretation,
Firefighters/Hours Worked (Sept. 19, 1987) (emphasis added). Given these two
conflicting positions, we cannot say that an employer in Beverly’s position would have
been able to ascertain with reasonable certainty what the Secretary claims the BBP
standard requires here. Cf. Gen’l Elec. Co. v. EPA , 53 F.3d 1324, 1332 (D.C. Cir. 1995)
(“[i]t is unlikely that regulations provide adequate notice when different divisions of the
enforcing agency disagree about their meaning.”).

The chief difficulty we see with the Secretary’s claims of notice is that as drafter
of the BBP standard and its preamble, she would have been well within her authority to
provide language of “ascertainable clarity” that informs an employer exactly what “at no
cost” requires. See Diamond Roofing , 528 F.2d at 648. Indeed, even if we were to
ignore the effect of the FLSA letter, the Secretary has still failed to provide the requisite
clarity to her interpretation. After she issued the 1999 letter, she did not formalize the
opinion expressed there. Nor did she take the opportunity to restate the opinion despite
publishing two more CPLs responding to questions about the meaning of “at no cost.”
See OSHA Instruction CPL 2-2.44D (Nov. 5, 1999); OSHA Instruction CPL 2-2.69
(Nov. 27, 2001). In both CPLs, the Secretary failed to move beyond the studiously vague
answer that “at no cost” meant no “out of pocket” expenses. This is in stark contrast to
the preamble to the inorganic arsenic standard, which states directly that: “[t]he employer
is obligated to pay for the time spent taking the medical examination if it is taken outside
normal working hours[.]” Occupational Exposure to Inorganic Arsenic, 43 Fed. Reg.
19,583, 19,621 (May 5, 1978) (codified at 29 C.F.R. § 1910.1018). See also Phelps
Dodge , 11 BNA OSHC at 1444, 1983 CCH OSHD at p. 33,920. Given the continuing
failure of the Secretary to clearly state in the standard, its preamble, or in her
interpretations what she was able to clearly state in prosecuting this case, we conclude
that Beverly lacked fair notice of the Secretary’s interpretation of
§ 1910.1030(f)(1)(ii)(A) and vacate the citation.

Conclusion

We hold that the phrase “at no cost” in the BBP standard is ambiguous, but that
the Secretary’s interpretation that the provision includes an employee’s time and travel
expenses is reasonable. However, we conclude that Beverly lacked fair notice of the
Secretary’s interpretation, and therefore we vacate the citation.

SO ORDERED.

/s/________

W. Scott Railton

Chairman

/s/________

Horace A. Thompson, III

Commissioner

Dated: September 18, 2006

ROGERS, Commissioner, concurring in part and dissenting in part:

I concur in the well reasoned analysis of my colleagues with respect to the
ambiguity of the cited provision and the resulting deference to the Secretary’s reasonable
interpretation of it based on the role assigned to us by Congress and the Supreme Court.
Martin v. OSHRC , 499 U.S. 144 (1991). However, I reluctantly part company on the
question of fair notice. While this is a close question, I believe the July 7, 1999
interpretation letter by the Director of Compliance Programs at the Occupational Safety
and Health Administration (OSHA) tips the balance in favor of finding fair notice. The
letter, which predates the cited conduct, specifically deals with the two questions at issue
here – whether Beverly was required to reimburse employees for (1) travel expenses and
(2) time incurred in seeking medical treatment under the bloodborne pathogens standard.
The letter clearly states that the cost of transportation must be covered by the employer
and that time spent receiving the vaccine (including travel) should be considered duty
time.

My colleagues refer to a 1987 interpretation letter under the Fair Labor Standards
Act (FLSA), which came to an opposite conclusion with respect to duty time as the 1999
OSHA letter, as possibly creating confusion. My colleagues then cite to Gen’l Elec. Co.
v. EPA (GE) , 53 F.3d 1324 (D.C. Cir. 1995), which found a lack of fair notice when there
were conflicting interpretations between different divisions of the same agency (EPA) of
the same regulation under the Toxic Substances Control Act. However, in contrast to the
situation addressed by GE , the FLSA letter addresses an interpretation by another agency
within the Department of Labor of a different regulation under a different statute, the
FLSA. Even if one accepts the notion that the two interpretation letters at issue here may
have created some measure of confusion on the part of Beverly, the latter interpretation
letter by OSHA interpreting the regulation at issue here as least gave Beverly enough
notice such that it should have inquired of OSHA. See Corbesco Inc. v. Secretary of
Labor , 926 F.2d 422, 428 (5th Cir. 1991).

Accordingly, I would find that Beverly had fair notice and I would affirm the
citation.

/s/________

Thomasina V. Rogers

Commissioner

Dated: September 18, 2006

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NOS. 04-1091

and 04-1092

BEVERLY HEALTHCARE -
HILLVIEW,

Respondent.

DECISION AND ORDER

These cases are before the Occupational Safety and Health Review Commission
(“the Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. §§ 651-678 (“the Act”). Beverly Healthcare-Hillview (“Respondent”)
owns and operates a nursing home facility in Altoona, Pennsylvania. The Occupational
Safety and Health Administration (“OSHA”) conducted two different inspections of
Respondent’s facility, one in July 2003 and one in January 2004; as a consequence,
OSHA issued Respondent serious and other-than-serious citations. Each inspection
resulted in an other-than-serious citation item for an alleged violation of 29 C.F.R. §
1910.1030(f)(1)(ii)(A), a provision of the bloodborne pathogens (“BBP”) standard that
requires that employers make available “at no cost to the employee” medical treatment
required as a result of a needle stick.

Item 1 of Citation 2, in OSHRC Docket No. 04-1091 (Inspection No. 306957770), involves a needle stick incurred by Respondent’s
employee Darryl Kosanovich on January 4, 2004. Item 2 of Citation 1, in OSHRC
Docket No. 04-1092 (Inspection No. 306902644), involves a needle stick incurred by
Respondent’s employee Vicki Pacovsky on December 18, 2002. Respondent timely
contested the citations, and, following the filing of a complaint and answer in each
docket number, the parties entered into a settlement agreement disposing of all citation
items except for the aforementioned items.

The parties have filed motions for summary
judgment with respect to these two citation items.

Jurisdiction

Complainant alleges and Respondent admits that it is an employer engaged in the
operation of a nursing home at the above-noted location. Respondent admits that it uses
tools, equipment and supplies which have moved in interstate commerce. I find that
Respondent is engaged in a business affecting interstate commerce.

Based on the above finding, I conclude that Respondent is an employer within the
meaning of section 3(5) of the Act, 29 U.S.C. § 652(5).

Discussion

In the absence of a specific Commission rule as to summary judgement, Rule 56
of the Federal Rules of Civil Procedure applies by virtue of Commission Rule 2, 29
C.F.R.§ 2200.2. The Federal Rule provides, in pertinent part, as follows:

The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.

The Commission has long recognized that summary judgment is not appropriate
where material facts are in dispute. Van Buren-Madawaska Corp., 13 BNA OSHC 2157
(No. 87-214, 1989). In the subject cases, each party maintains that it is entitled to a
judgment as a matter of law.

The issue presented concerns the provision of the BBP standard, which requires
that medical evaluations and procedures and post-exposure medical treatment be
provided to an affected employee “at no cost” to the employee. The Secretary has
interpreted the “no cost” provision to include employee wages for time spent during non-working hours receiving post-exposure evaluation and follow-up, and mileage for driving
to the location where post-exposure evaluation and follow-up were made available.
Respondent construes the “no cost” provision as being limited to the cost of the actual
medical treatment provided. Alternatively, Respondent argues that the Secretary’s
interpretation of the standard violates due process and is therefore unconstitutional
because Respondent was never given adequate notice of what the law requires. The
parties have filed pleadings, depositions, answers to interrogatories, and admissions on
file, together with affidavits, which reveal that there are no material facts which are
disputed with regard to the issue presented. The two items at issue involve needle sticks
sustained by two of Respondent’s employees, Vicki Pacovsky and Darryl Kosanovich. It
is undisputed that both Pacovsky and Kosanovich received their post-exposure evaluation
and follow-up during their non-working hours. It is also undisputed that Respondent paid
HealthForce, a medical facility available to provide health care services for Respondent’s
employees, 100% of the cost of Pacovsky’s and Kosanovich’s medical evaluations and
procedures, including post-exposure evaluation and follow-up.

Standards and regulations under the Act are to be broadly and reasonably
construed to effectuate the Act’s express purpose, which is to assure so far as possible
every working man and woman in the Nation safe and healthful working conditions and
to preserve our human resources. Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-13
(1980).The BBP standard does not define the term “at no cost.” However, the preamble
to a regulation may be consulted in determining the administrative construction and
meaning of the regulation. Martin v. American Cyanamid Co. , 5 F.3d 140, 145 (6 th Cir.
1993). The preamble to this standard stresses the critical importance of medical
evaluations and post-exposure medical treatments being available “at no cost” to the
employee, and it cites comments that providing vaccinations “at no cost” is important to
having a successful program.

Employee participation “at no cost” to employees is key to
reducing the risk of infection and the prevention of further transmission of infection.

The word “cost” encompasses several common meanings. Webster’s Third New
International Dictionary (1986) defines “cost” in broad terms with a number of
meanings, including “the amount or equivalent paid or given or charged or engaged to be
paid or given for anything bought or taken in barter or for service rendered ... whatever
must be given, sacrificed, suffered, or forgone to secure a benefit or accomplish a result
... the expenditure or outlay of money, time or labor ....”(Emphasis added). An
employee certainly incurs a “cost” when using his own time to obtain medical services,
and an employee also incurs a “cost” upon paying for his own transportation to obtain
those services. I therefore agree with the Secretary’s determination that Respondent’s
employees incurred a cost when they expended their own time to secure post-exposure
medical treatment. I also agree that the employees incurred an additional cost when they
paid for their own transportation in order to travel to secure such treatment. The failure to
reimburse them for these costs would operate as a disincentive to their participation in
this optional program.

Based on the foregoing, I find that the term “at no cost to the employee” is clear
and unambiguous. I further find that the Secretary’s interpretation of the term conforms
to the language and purpose of the cited standard and that it also expresses the intent of
the standard as set out in the preamble.

Having found the standard unambiguous,
however, I note that any ambiguity alleged is certainly addressed in the Secretary’s
interpretations of the cited standard. In interpreting OSHA’s regulations, the Commission
adheres to the general rule that the Secretary’s interpretation is entitled to substantial
deference if the interpretation is reasonable. Martin v. OSHRC , 499 U.S. 144, 151
(1991); Martin v. Amercian Cyanamid , 5 F.3d at 144. The agency’s interpretation is
“reasonable … so long as the interpretation sensibly conforms to the purpose and
wording of the regulations.” Martin v. OSHRC, 499 U.S. at 151; Whirlpool Corp. v.
Marshall , 445 U.S. at 11. “A reviewing court may certainly consult [the Secretary’s
informal interpretations] to determine whether the Secretary has consistently applied the
interpretation embodied in the citation, a factor bearing on the reasonableness of the
Secretary's position.” Martin v. OSHRC , 499 U.S. at 157.

The Secretary’s interpretation of the “at no cost” provision is found in three OSHA
directives, dated 1992, 1999 and 2001, which have consistently provided a clear interpretation
of the regulation indicating that the “at no cost” provision means at no expense to the
employee and includes out-of-pocket expenses. These directives provide notice regarding the
Secretary’s interpretation of her regulations. See Martin v. OSHRC , 499 U.S. at 158; Martin v.
American Cyanamid , 5 F.3d at 146. In 1992, following publication of the BBP standard,
OSHA published the first directive--CPL 2-2.44C--to establish policies and provide
clarification to ensure uniform inspections to enforce the standard. With respect to paragraph
(f)(1)(ii)(A), the directive states that the “term ‘no cost to the employee’ means among other
things no ‘out of pocket’ expense to the employee.” In 2001, OSHA published another
directive, CPL 2-2.69, which repeats the language from the 1992 directive.”

In using the term “among other things,” the directive clearly intended to assign a broad
meaning to the “at no cost to the employee” provision. The preposition “among” is used to
refer to three or more things, persons or choices. “Out of pocket expenses,” e.g. , co-payments,
are in addition to other costs associated with obtaining the vaccine. It is apparent from the
directive that “among other things” contemplates a broad range of “costs” and not the narrow
meaning Respondent attributes to the word.

Moreover, the Secretary also communicated her
view of the “at no cost” provision of the BBP standard in the 1999 directive, which was
actually a letter of interpretation dated July 7, 1999, from Richard Fairfax, OSHA’s Director of
Compliance Programs, to Alfred Whitehead, General President of the International Association
of Fire Fighters. In response to an inquiry as to whether an employer must provide or pay for
transportation to and from the site where the vaccination is administered, the letter clarifies
that employees undergoing post-exposure medical procedures required by the BBP standard
may incur “no out of pocket expense” and that the employer must cover the costs of
transportation to and from the site of vaccination.

This letter further exemplifies the broad
meaning of the word “cost” and shows that it includes transportation.

The Secretary has made all of the above-noted documents available to the public
through OSHA’s website. Based on these documents, the preamble to the standard, and the
language of the standard itself, I find that that the term “at no cost” is clear enough that people
of common intelligence would not have to guess at its meaning. Accordingly, I find no merit in
Respondent’s assertion that the Secretary failed to give constitutionally-adequate notice that
the standard requires payment for expenses other than charges for medical evaluations and
procedures.

I find that Respondent has imposed costs on the affected employees and has violated
the cited standard. Respondent did not pay the employees for time spent traveling back and
forth to the treatment site or for time spent in receiving the treatment; likewise, it did not pay
them for their transportation expenses. Accordingly, Respondent must compensate them as
required by the standard.

Findings of Fact

All findings of fact relevant and necessary to a determination of the contested issues
have been found specially and appear in the decision above. See Rule 52(a) of the Federal
Rules of Civil Procedure.

Conclusions of Law

1. Respondent was, at all times pertinent hereto, an employer within the meaning of
section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678.

2. The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter.

3. Respondent’s Motion for Summary Judgement is DENIED.

4. The Secretary’s Motion for Summary Judgement is GRANTED.

5. In Docket No. 04-1091, Respondent was in violation of section 5(a)(2) of the Act in
that it failed to comply with the standard at 29 C.F.R. § 1910.1030(f)(1)(ii)(A), as alleged in
Citation 2, Item 1. The violation was other than serious. A civil penalty of $ 0.00 is
appropriate.

6. In Docket No. 04-1092, Respondent was in violation of section 5(a)(2) of the 2Act in
that it failed to comply with the standard at 29 C.F.R. § 1910.1030(f)(1)(ii)(A), as alleged in
Citation 1, Item 2. The violation was other than serious. A civil penalty of $ 0.00 is
appropriate.

7. Pursuant to section 10(c) of the Act, Respondent shall reimburse employees Darryl
Kosanovich and Vicki Pacovsky for wages for time spent during non-working hours to receive
post-exposure evaluation and follow-up and for mileage for driving to the location where post-exposure evaluation and follow-up were performed.

ORDER

1. Item 1 of Citation 2, in Docket No. 04-1091, 1 is AFFIRMED as an other-than-serious violation. A civil penalty of $ 0.00 is assessed.

2. Item 2 of Citation 1, in Docket No. 04-1092, is AFFIRMED as an other-than-serious
violation. A civil penalty of $ 0.00 is assessed.

3. Respondent shall reimburse Darryl Kosanovich and Vicki Pacovsky for their non-working time spent and for travel expenses incurred in receiving post-exposure evaluation and
follow-up.

/s/

COVETTE ROONEY

Judge, OSHRC

Dated: March 28, 2005

Washington, D.C.