Pennsylvania Litigation Blog
Compensation Required for Employees Receiving Treatment under OSHA Provision.
In Secretary of Labor v. Beverly Healthcare-Hillview, No. 06-4810, 2008 WL 4107489 (3rd Cir. September 4, 2008) the Court found that a nursing home operator was required to compensate employees for travel expenses and non-work time spent receiving treatment under the Bloodborne Pathogens Standard of the Occupational Safety and Health Act (OSHA). The Bloodborne Pathogens Standard requires that employers make the hepatitis B vaccine and other medical evaluations and treatments available to all exposed employees at no cost to the employee.
The Company at issue operated a nursing home in Pennsylvania, and two nurses who worked at the facility, received a “needlestick” while at work. Both nurses subsequently sought treatment for their wounds at an off-site medical facility. Their subsequent and ongoing treatment required them to return to that facility for periodic follow-up during non-work hours.
The Company paid for the cost of the medical evaluations and procedures, but failed to compensate the nurses for the non-work hours they spent receiving their follow-up treatments. Moreover, the Company did not compensate the employees for their travel expenses to and from the facility.
The Occupational Safety and Health Administration issued citations to the Company for failure to compensate the nurses for travel expenses and non-work time spent receiving treatment. The Company disputed the citations, and argued that the no-cost provision of the Act should not be read so broadly.
Subsequently, an administrative law judge upheld the citations, but the Occupational Safety and Health Review Commission reversed, finding that the Company did not have “fair notice” of the broad interpretation of the no-cost provision.
Ultimately, the Third Circuit disagreed, and found that the Company had “fair notice” of the no-cost provision as a result of OSHA’s opinion letters, directives and prior caselaw. Specifically, the Court found instructive a 1999 opinion letter which stated that transportation under the Bloodborne Pathogens Standard may not need to be provided by the employer, but the employer must cover the cost of transportation. The same opinion letter also provided that when receiving a vaccine or commuting to have it administered, employees must be considered on-duty and compensated. Accordingly, the Court agreed with the Secretary of Labor’s position that a “reasonable interpretation” of the no-cost provision required the Company to pay for travel expenses and non-work time.
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