The Third Circuit Court of Appeals recently issued an interesting and, what may be considered by some employers, a costly decision regarding the payment of wages to employees who seek evaluation and treatment pursuant to the Bloodborne Pathogens Standard (BPS), 29 C.F.R. § 1910.1030. In Secretary of Labor v. Beverly Healthcare-Hillview, the Third Circuit held that an employer must pay for the travel expenses of and non-work time spent by its employees obtaining treatment pursuant to the BPS. No. 06-4810, (3rd Cir. Sept. 4, 2008).

The BPS requires employers to make the hepatitis B vaccine and vaccination series available to all employees who have occupational exposure to blood or other potentially infectious materials and to ensure post-exposure evaluation and follow-up to all employees who have had an exposure incident. In addition, the standard states that "[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) [m]ade available at no cost to the employee; (B) [m]ade available to the employee at a reasonable time and place."(emphasis added)

The issue for Beverly began when two of its nurses suffered needlestick injuries while at work. Each employee sought treatment at the end of her 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 the cost of the medical evaluations and procedures, but did not reimburse the employees for the non-work hours spent receiving their treatments. Moreover, Beverly did not compensate the employees for their travel time or expenses relating to the treatments.

The Occupational Safety and Health Administration (OSHA) inspected Beverly's facility and issued "other than serious" citations to Beverly, claiming that it violated the BPS because it failed to provide post exposure evaluation and testing "at no cost to the employee." Beverly contested the citations, asserting that the plain language of the standard excluded compensation for non-work time and expenses relating to travel and, thus, the secretary of labor was not allowed to interpret the standard to include such compensation. Beverly also argued that even if the "at no cost" provision was ambiguous, the secretary's interpretation of that language to include payment for travel time, non-work time and expenses was unreasonable. Finally, Beverly argued that the citations should be vacated because it did not have fair notice that the secretary would interpret the language to include such expenses. The employer claimed that the secretary had not construed other similar provisions to require such compensation.

Although an administrative law judge rejected Beverly's arguments and upheld the citations, the Occupational Safety and Health Review Commission reversed, finding that Beverly did not have fair notice that the "at no cost" provision would include travel expenses and non-work time. The secretary appealed, and the Third Circuit vacated the commission's order.

The Third Circuit agreed with the secretary that the language of the "at no cost" provision was ambiguous and permitted OSHA to interpret the words to include travel and non-work time compensation. The court concluded that this interpretation was reasonable because it "sensibly conformed to the purpose and wording of the regulations," was based on the dictionary definition of cost and did not "impermissibly strain" the plain language of the regulation. Additionally, the court found that the interpretation comported with the BPS's purpose in encouraging employees to seek evaluation and treatment for occupational exposure to bloodborne pathogens.

In addition to finding the interpretation proper and reasonable, the court concluded that certain available public sources put Beverly on sufficient notice of OSHA's broad interpretation of the "at no cost" language. The court found that a 1999 OSHA opinion letter gave the employer notice, because it stated that travel expenses are compensable and that an employee is considered "on-duty" when receiving evaluation or treatment. In addition, the court found that a 1984 decision from the 9th Circuit (Phelps Dodge v. Occupational Safety and Health Rev. Comm'n, 725 F.2d 1237 (9th Cir. 1984)) provided notice to Beverly, because it upheld a commission decision that "employees given examinations during non-working hours" incurred a "cost" and should be "paid for their time." That decision also stated that "[e]mployees who are not reimbursed for extra transportation expenses incur a 'cost' in the plainest and most natural sense of the word."

The Third Circuit's decision in Beverly Healthcare-Hillview means that employers who are required to comply with the BPS must be sure to provide compensation for time spent and reimbursement for expenses incurred in obtaining evaluations and treatment following an exposure incident. Employers who believe they are required to comply with the BPS should, therefore, review their policies and procedures governing post-exposure evaluation, treatment, and follow-up to ensure that they are covering these costs for employees. If you have any questions about this recent Third Circuit case or the application of the BPS in general, please contact any of our Labor & Employment Law attorneys.