yeah this is a this is a an important proceeding brought by the oak occupational safety and health administration against wal mart's distribution center in the latch of a florida wal mart has a number of these centers across the united states are huge as you can imagine and also involve citations involving the blood borne pathogens standard also called b b p that should opted from god lines from the center for disease control which is part of the public health service in those days l service the c d c the centers for disease control has no rule making authority and no ability to enforce anything but they do based upon medical and scientific evidence come up with god lies or recommendations on how to deal with various things and they have for hepatitis b and other potentially infectious material that people come into contact with when they are involved in primarily health care working situations and when they adopted these guidelines when osha did in one nine hundred ninety s the early one nine hundred ninety s is when you went to your dentist office and they had the plastic bags all around everything that they used because that was to prevent blood getting into somebody's system now it the statute has two types of regulations six a six b six a is the typical standard where in a workplace if you have fall protection issues you put up a guard rail or you have somebody a safety line six beads particularly six b five is for health and other related stand  has directed by congress when they issue a sixty five standard to use the highest degree of protection to prevent the exposure to a dangerous substance now let's listen to the fall protection example as an issue you put up a guardrail or you give a worker of a safety lane you're to prevent the hazard in connection with the blood borne pathogens standards the guidelines or the recommendations from the c as to a series of vaccinations shots that you can take if there's a potential being exposed to blood in the workplace but unlike the fall protection standards when somebody falls they get hurt if they don't have a guardrail or a safety belt if you don't have the h p v vaccination shots and you get exposed you can take it after the fact and you're going to be ok as a matter of fact it's recognized by osha itself and several of his directives and interpretive guidance is that if you are unable or for some reason do not provide these  vaccinations to a potential person who may be exposed to blood borne pathogen issues you could always do it after the fact it's rare fact there's nothing in the guidelines a says you're supposed to do it as meaty immediately as possible but there's nothing in the god lines that says anything about when it has to be done it's one of these vaccinations that once it happens you're going to be ok you're going to be fine it can still be effective as a matter of fact you can go to work the guidelines and work for a period up to ten days without even have a vaccination that's when the citations of wal mart got here now it's so it's clear in healthcare areas not so clear and the general industry advisors and there are two in our six in the exhibits in the case that says that there's a lot of flexibility in issuing these things and if after the fact you are working and you get exposed just get the vaccine there be a no violation of the standard or if you have people that are like in this situation occasionally in a rendering first date you're you're basically exempt from issuing the string of  that's within their discretion regardless no it's it is specifically their interpretation of the standard is that if the collateral duty exemption applies you don't have to issue the series of vaccinations you only issue  once they've been exposed the blood borne pathogen standard your honor has more than just the vaccination it's got p p e it's got training all the employees at wal mart that were these start providers the first day providers bleeding but they were exposed therefore they didn't have to have the vaccine because the fact that they were a shield they had gloves they wash their hands afterwards and you sanitary things so they didn't even get exposed so that individual didn't request and didn't need to even be offered the vaccination now and one of the things this very important is that you can only offer the vaccination to an employee they don't have to take it and that overcome the fact that the there was a factual finding made that the care was provided in a separate silvie which would take you out of that exemption is pretty high standard of review in that while there isn't there isn't because judge joyce who is the administrators law judge her decision was not adopted by the review commission and they were buca mission as the ultimate finder of fact and what that means in the in the in the administrative procedures of the occupational safety and health review commission it is not even binding on another judge administrative law judge as it has no precedential bag but for purposes of judicial review is in her decision the final decision of the agency in this case it's a final order of the agency of the or that i have there it's binding on another e l james another case is different from whether it's the by the ultimate finding of the agency in this case to trigger the time period to seek review in the court well all or to trigger the standard of review for findings of fact well that the substantial evidence based of duty exemption says that the first of all these people it was found in the record they only they only respond about once or twice a year as about a thirty minute of it and they are strategically there's about twenty one of them at this particular workplace and they're strategically located on shifts they have shift work and things like that so there may be one or two at the side at any given time now if if if there's an injury because the exemption says generally at the place that the incident happen and there's no explanation of that our position is the place that it happened was the district distribution center the judge said no it has to be or you find that the employee hurt but the first aid that they provide or the care that they provide is not always the same the employee can walk to the certain rooms which is basically a room that has it doesn't have a it  doesn't have an x ray machine it doesn't have anything it's just a room where they can go and be private and they can handle it there or they do it right at the at the area where someone may be seriously injured fortunately that doesn't happen very often but if you think about it if you accept the judge's interpretation this way the same day the hazar duty exemption would apply if the certain number one out into the distribution and put a band aid on a cut where the worker was working but then the next trip the hazard duties exemption wouldn't apply if she met the injured employee in the certain room and that's why we don't think that's representing the secretary of labor if you'll permit me i'd like to address the collateral duty policy first since that was just discussed and in substantial detail the policy itself is actually not memorialized in the b b p the blood borne pathogen standard your honors it's included in osha's enforcement procedures for the occupational exposure to blood borne pathogens and even if the collateral duty policy constituted a binding exception which the secretary asserts that it does not warm or fails to meet the policies criteria here based on the facts in the record now the policy the purpose of the the exposure guidance is to establish policies and provide clarifications to ensure uniform inspection procedures are followed when conducting inspections to enforce the standard and the this is the collateral duty exhibit yes it's an informant policy it's included in it in force majeure active to osha staff to ensure consistency in inspections when they're executing procedures don't carry the force in effect of law and they actually explicitly read in in the enforcement procedures that osha's restatement clarification or explanation of the requirements of the standard does not amend the standard or sorry does not create therefore my question is why do we have to get into whether the exception applies if it's not even something that company can and force against the secretary yes right i'm we if you want to argue it the other way it's asserted by wal mart my my suggestion is even if it were to apply here even if it were found to be an exam an exemption under the standard the the the policy isn't met here the facts of the case do not are off you are kind of that way go ahead yes you honor and i'll point to the facts that that do not support the application here the policy requires that employees designated to render first aid as the serious injury response seen response team members were here most respon from workplace incidents generally at the location where the incident occurred as noted by wal mart's counsel the l j pointed to the fact that the location where the injury occurred must refer to a place more specific than the entire facility where that provision would be  found it issue that also the record evidence demonstrates that the third provision noting that employers must provide the h p v vaccine to unvaccinated employees with occupational exposure even in the presence of blood not just in exposure incidents that's also not met here council actually indicated a time when an employee was in the presence of blood but she didn't report because she didn't feel she was exposed and there's a number of points in with regard to the third provision that i just referenced where companies blood borne pathogens training and their exposure control plan actually address circumstances where there is me the mere presence of blood as opposed to exposure incidents which are defined in  ten thirty b nine hundred ten ten thirty be under the regulations it's different to just have blood present versus being exposed and there's testimony in the record about the difference between exposure and presence for example michael trusty the senior director of compliance and safety testified exposure would be where a person has had blood on their skin an open place on their skin mucous membranes such as nose mouth and eyes presence of blood would just be where there is presence of blood so there is a distinction there it's noted both in the interpretive letters referred to by wal mart's counsel and in the publicly available guidance the internal enforcement guidance for directing inspections that the secretary referenced is also in the record it's at appendix six seventy three is where the relevant portion applies but we would suggest based on the facts that neither the location element nor the presence of blood element are met in the collateral duty a stop to apply the collateral duty policy here not to preclude it from policy out there has had it out there for guidance for its inspectors it's co shows but here it does not apply wal mart does not meet the fact it's a it's not a binding exemption and even if it were they do not meet the facts here your hon offer the vaccine to people merely explodes exposed to blood not just an exposure incidents those additional protections still serve the purposes of the act so the unfortunate policy still serves the purposes of the act where all these provisions are met again the  exemption the inspector nonetheless perceived there was litigation over whether it was binding i can't speak to that you are i could look into that provide additional information if the court would like but i don't have that information off the indicating that at least seven employees had either received the first of that nation been offered that or signed the declaration letter that wal mart's counsel referred to there were no records on this point but that is supplementary to the fact that wal mart supervisor admitting to the violation it was properly classified the citation was properly classified as a repeat as it was issued under the same the same regulation as the prior violation that was issued in two thousand and twelve and became a vaccination dose then at one month and then at six months that six months after the initial dose they they are guidelines but they are meant to be followed closely i don't know that one day i'm not a medical doctor but i don't know that one day would make a sufficient differen what the c d c has said is that that third dose provides the maximum saira protection and appears to provide optimal long term protection it protects fifteen additional people out of every hundred and it's a serious you know the virus is a serious medical condition it can result in death so it's this is a significant and direct you know relationship to health and and it's not a trifling violation with regard to the case support you asked for your honor union oil out of the ninth circuit pittsburgh deal out of the third and kennicott copper out of the tenth all of which are referenced in our brief support that oh ship can issue rules under six b to make guidelines or standards mandatory now under six a the in opposite case law that wal mart cites the hockey case that has to say has to do with standards that were adopted in the first two years of the osh act was allowed specifically congress allowed to adopt consensus or national standards in order to set up in short order a national framework for safety and health those many of those  had shall you showed language instead of instead of shell language and actually i think both parties represented reference revocation rulemaking that withdrew a number of those i think the number was one hundred fifty three after proposing almost two hundred for revocation and in that revocation rulemaking osha acknowledged that courts have said you can't just say should mean shell if you're going through six a osha took that under advisement and as other courts have found issuing we are allowed to do that we can make these shelf standards as opposed to  should i will note and the secretary's brief also notes that while mark waived a number of its arguments including that including that the secretary failed to prove harm would result from missing the third that was statutorily waived under section eleven  act twenty nine us c sixty a because it was not included in the petition for discretionary review to the occupational safety and health review commission it waived that it didn't have a fair notice and it also waived the argument that these guidelines set minimum as opposed to maximum maximum requirements for administration of the standard the secretary would submit respectfully smits this court that it should uphold the decision affirming these two citations as the conclusions are reasonable and supported by substantial evidence the substantial evidence standard is the appropriate standard for review the ael j's ruling became a final order of the commission when the commission declined the and a standard interpretation for example are two in the record is a letter from a individual asking about the exemption and trying to get  website and we cited cases in our in our brief that basically say that the public employers are entitled to look at these interpretive interpretations of the standards and to rely upon them if not why are they there they're not they're not like osha has a field operations manual where it tells compliance officers what to do and what not to do out of do investigations for example you're supposed to have an open call conference in a closing conference or an inspection but if you don't do it it's not fatal to a citation that provides no private rights to an employer but this is different people can rely on this because it's there and that makes it a lot different than bridge prosecute prosecutorial discretion or frankly with regard to the repeat violation and i think this is another good example of why the blood borne pathogens standard is such a peculiar animal the the basis for the repeat citation was a citation issued to a wall more store there are no first day providers there at all a customer came in and apparently in the situation there was either a kid or somebody else that got sick or or whatever and they have a policy of going out and there their procedure is they have all the right types of anesthetics to put down to to destroy anything this in the fluid and they clean it up they don't provide first day there's no first day providers and a wal mart store they called nine one one because or in local areas they were cited for not having a policy at all that's very factually different than what happened at the distribution center wal mart's compliance policy p for blood borne pathogen on the record the attorney for osha admitted that it was perfectly fine and so to the compliance officer so the two citations that are involved here deal with failing to comply with the standard which osha says was the initial ten day period to make offer to make the the vaccine available and to complete the series to three series that's in wal mart's policy and yes there was a guy who came in and testified that he admitted it was his responsibility and he didn't do it but you don't get to that in either side taishan if you find that the collateral duty exemption applies in wal mart's satisfied it just is just not there at all so  that makes it go away completely i mean the the the the issues of what wal mart way what it didn't weigh i think we've addressed that in armories we had an employee misconduct offense we didn't pursue that after the hearing in the appeal if there are any other questions i'll be happy to respond to them otherwise i think i'm completely very well thank you for your argument we appreciate the attendance