The Occupational Safety and Health Administration’s Bloodborne Pathogen Standard (BPS) requires, among other things, that employers provide employees with Hepatitis B vaccines, and provide treatment of employees potentially exposed to bloodborne pathogens in the workplace.  The standard primarily applies to the health care industry, but also covers employees in general industry with designated first aid responder duties.  A new Third Circuit Court of Appeals decision expands employers’ financial obligations under the BPS to include payment of employees’ wages and incidental expenses involved in seeking vaccination or treatment.

In Secretary of Labor v. Beverly Healthcare-Hillview, OSHA cited the employer for failure to compensate employees for travel expenses and non-work time spent receiving treatments for possible workplace exposure.  The BPS provides that employees shall receive such treatments at no cost, but does not address their entitlement to wages or expenses involved with such treatment.  The Third Circuit upheld the citation, concluding that no-cost to the employee means that they must be made whole for potential lost wages and out-of-pocket expenses involved with BPS compliance.  The court deferred to OSHA interpretations of the BPS and similar standards to mandate such payments.

Based upon this decision, healthcare and other employers covered under the BPS should consider all employee time spent receiving vaccination or needle stick treatment as working time, and should reimburse employees for out-of-pocket expenses incurred in complying with these requirements.