Wal-Mart is off the hook but other companies may not be when it comes to an OSHA regulation regarding hazard assessments. OSHA’s Voluntary Protection Program (VPP) plays a part in a federal court’s decision in this case.
Here’s the background: In February 2008, OSHA inspected Wal-Mart’s distribution center in New Braunfels, TX. Six months later, OSHA issued a fine to Wal-Mart for failure to conduct an individual hazard assessment of the distribution center. The fine: $1,700.
One month before OSHA’s inspection, the agency audited the company’s Searcy, AR, distribution center as part of Wal-Mart’s application to enter the VPP. Wal-Mart told OSHA the hazard assessment for its Searcy location would be applied to other distribution centers (the company has 120 of them).
Wal-Mart appealed its citation and fine to the Occupational Safety and Health Review Commission (OSHRC). An administrative law judge (ALJ) concluded it was a reasonable interpretation of OSHA’s regulation to require individual hazard assessments of distribution centers. The ALJ rejected Wal-Mart’s “cookie cutter” approach because it failed to confirm that the two locations in question were, in fact, identical.
The OSHRC, in a 2-1 decision, affirmed the ALJ’s decision. The majority rejected Wal-Mart’s argument that it wasn’t provided adequate notice that its practices failed to comply with OSHA regulations. The company then appealed to the Fifth Circuit court.
Ambiguous regulatory language
The regulation in question, 1910.132(d)(1) requires employers to “assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).” The Fifth Circuit called this language ambiguous as to whether individual assessments of identical facilities are required.
The court notes that the non-mandatory appendix to the regulation states, “to assess the need for PPE” an employer should “conduct a walk-through survey of the areas in question” in which the safety officer should “observe” potential hazards. The court said this implies that individual facility assessments are required. However, the appendix is “clearly and explicitly designated as non-mandatory.”
The Fifth Circuit said the regulation’s various parts “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 cases where regulatory language is found to be ambiguous, federal courts often rely upon the agency’s interpretation. OSHA noted that even if the two distribution centers had identical designs, working conditions can change, especially over time. It was OSHA’s interpretation of the regulation that individual assessments were therefore required.
The court said it has no problem with OSHA’s interpretation of the regulation and upheld it. But this is where Wal-Mart’s VPP application comes in.
Wal-Mart had notified OSHA during the VPP audit of its Searcy location that it would use that facility’s hazard assessment for its other distribution centers. OSHA subsequently OK’d the Searcy location for VPP status.
“Thus, Wal-Mart has shown that through the VPP, it had a fair expectation that OSHA had found its procedures satisfactory,” the court wrote.
Therefore, the Fifth Circuit upheld OSHA’s interpretation of 1910.132(d)(1), but because Wal-Mart lacked adequate notice of OSHA’s interpretation, the court threw out the citation and fine.
For a hazard assessment at one facility to apply to others, companies (at least those covered by the Fifth Circuit) must show the locations are, indeed, identical, not just in design, but also in circumstances. Which leads us to ask: If you’re going to have to jump through hoops to show two facilities are identical, why not just perform the hazard assessment?
What do you think about the court’s decision? Let us know in the comments.
(Wal-Mart Distribution Center #6016 v. Dept. of Labor, U.S. Circuit Crt. 5, No. 15-604462, 4/6/16)