Dr. Dione Williams

Plain-English summary

OSHA cited Dr. Dione Williams for allegedly failing to make hepatitis B vaccination available to an employee who requested it after initially declining it. The doctor told the employee that the vaccination was free at a nearby hospital. The employee knew the hospital's location, had transportation, and had access to written instructions for getting more information or making an appointment. The judge held that the standard did not require the employer to make the appointment when the employee already possessed that information. Item 1a was vacated, and the parties had previously settled the other citation items.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1030(f)(2)(iii)
• Outcome: Item 1a of Citation 1 was vacated; the remaining citation items had previously been resolved by settlement.
• Key point: An employer made hepatitis B vaccination available by identifying a free nearby provider where the employee knew the location and had written appointment instructions.

Full text (OSHRC public release)

                             United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                       1120 20th Street, N. W., Ninth Floor
                          Washington, DC 20036-34 19



                                                                         Phone:(202)606-5400
                                                                          Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 951007
DR. DIONE WILLIAMS
Respondent.

                 NOTICE OF DOCKETING
          OF ADMINISTRATIVE L4W JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on May s 9, 1996. The decision of the Judge
will become a final order of the Commission on July 1, 1996 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
June 19. 1996 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.

All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:

                   Daniel J. Mick, Esq.
                   Counsel for Regional Trial Litigation
                   Office of the Solicitor, U.S. DOL
                   Room S4004
                   200 Constitution Avenue, N.W.
                   Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: May 30, 1996 ~~~~~~
DOCKET NO. 95-1007
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Karol Corbin Walker, Esquire
Robinson, St. John & Wayne
Two Penn Plaza East
Newark, NJ 07105 2249

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00107199077:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

                                                I

SECRETARY OF LABOR, I
Complainant,

                      v.                        I                        DOCKET NO. 95-1007

Dione Williams, M.D.,

               Respondent.

Appearances: Nancy Adams-Tavlor, Eso.
Office of the SoGtor *
U. S. Departmxt of E,alxx
For Complainant

                     Karol Corbin Walker, Esq.
                     Robinson, St. John & Wayne
                     Newark, N. J.
                            For Respondent

BEFORE: MICHAEL H. SCHOENFELD,
Administrative Law Judge

                               DECISION AND ORDER

Background and Procedural History
This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. § $ 651 -

678 (1970) (“the Act”).

    Having had her office     inspected by a compliance officer of the Occupational       Safety and

Health Administration, Dione Williams, M.D. (“Respondent” or “employer”), was issued one

citation alleging two serious violations and one citation alleging three other-than-serious violations

of the Act. Civil penalties in the amount of $2,700.00 were proposed by OSHA. Respondent timely
contested. Following the filing of a complaint and answer and pursuant to a notice of hearing, the

case came on to be heard in New York, New York on February 8 & 9,1996.’ No affected employees

sought to assert party status. Both parties have filed post-hearing briefs.

Jurisdiction
Complainant alleges and Respondent does not deny that she is physician engaged in a

medical practice specializing in ear, nose and throat, head and neck surgery. Respondent admits that .

she uses instruments, equipment and supplies which have moved in interstate commerce. On these

facts, I find that Respondent is engaged in a business affecting interstate commerce.

       Based on the above finding, I conclude that Respondent    is an employer within the meaning

of 5 3(S) of the Act.2 Accordingly, the Commission has jurisdiction over the subject matter and the

parties.

Discussion
Notwithstanding any other issue in this case, the final resolution of whether Respondent

failed to comply with the cited standard3 as alleged in the citation4 distills down to whether the

phrase “shall make available” as used in the standard requires an employer to make an appointment

l Prior to the hearing the parties entered into a stipulated settlement which resolved all issues
except as to the disposition of Item la of Citation 1. The settlement was approved by order of
July 26, 1995.

2 Title 29 U.S.C. $ 652(5).

3 The cited standard, 29 C.F.R. 5 1910.103O(f)(2)(iii), reads:
(iii) If the employee initially declines hepatitis B vaccination but at
a later date while still covered under the standard decides to accept
the vaccination, the employer shall make available hepatitis B
vaccination at that time.

4 Citation I, Item la, alleges that;
The hepatitis B vaccination was not made available to an employee
who initially declined the hepatitis B vaccination but at a later date,
while covered under the standard, requested the vaccination.
and perform the other ministerial arrangements necessary for the requesting employee5 to receive

such a vaccination. I conclude that the standard imposes no such requirement where, as here, such

information is known to the employee.

    While many facts in this case are in controversy,          even if the complaining      employee’s

testimony is taken at face value, she testified that upon requesting a Hepatitis B vaccination from

her employer she was informed that it was available at no cost to her at a nearby hospital (Tr. 33,48,

163-l 64, 167); she knew the location of the hospital (Tr. 48, 164); she had been to the hospital

before; the hospital was conveniently located in relation to her place of employment; she had

available to her transportation back and forth to the hospital (Tr. 177-178); and she was specifically

aware of a “physician bulletin,” a copy of which was included in a loose-leaf binder containing . .

information for employee& (Tr. 165, 179-181); and the “physician bulletin” included precise

instructions on how to obtain further information or make an appointment to receive the shots

(Exhibit C-3, p. 240; Tr. 166). Even if the employee was, as she claimed, under the “impression”

that her employer was going to make “the necessary arrangements,” (Tr. 175) there is no substantial,

reliable evidence demonstrating or raising the inference that the employer knew or should have

known that the employee was anticipating that “arrangements” would be made for her.7 Under these

circumstances, I find that the employer took all reasonably necessary and appropriate steps to “make

available” the Hepatitis B Virus vaccination to the complaining employee.

     In its post-hearing     brief the Secretary    argues that the ultimate    responsibility    for the

employee’s failure to get the vaccine must rest with Respondent. The argument is rejected. This

5 The matter was initiated by the filing of a formal complaint with OSHA. While there may be
some conflict as to the precise dates of employment of the person who filed the complaint, there . .
is no dispute that she was employed by Respondent at the time she allegedly requested the
vaccine.

6 Exhibit C-3, at page 000240.

7 Additional requests for the vaccination by the same employee at later dates might be consid-
ered to place the employer on notice that something more had to be done to “make [the vaccine]
available.” The evidence on this record, however, is insufficient and not reliable enough to make
a finding of fact that a second or subsequent requests were communicated by the employee to the
employer. (See, Tr. 30,32033,44045,48049.)
 is not, as the Secretary argues, a matter of protection not being afforded an employee due to the lack

of training received by the employee. This is a matter of an employee’s failure to act reasonably

on knowledge she already possessed or had readily available to her (e.g., physician’s bulletin, phone

number and location of Beth Israel Hospital, Etc.).
         The record in this case does not demonstrate by a preponderance   of the reliable evidencethat
Respondent    ftiled to make available the Hepatitis B vaccination   to an employee.        It has not been

established   that Respondent   failed to comply with the standard. Thus,        Citation    1, Item la is     .

VACATED.

                                        FINDINGS OF FACT
         All findings of fact necessary for a determination of all relevant issues have been made

. above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with

this decision are hereby denied.

                                      CONCLUSIONS OF LAW
         1. Respondent    was, at all times pertinent hereto, an employer within the meaning of

5 3(5) of the Occupational Safety and Health Act of 1970,29 U. S. C. 6 5 651 - 678 (1970).
         2. The Occupational Safety and Health Review Commission has jurisdiction over the parties

and the subject matter.

         3. Respondent was not in violation of the standard at 29 C.F.R. 5 $ 1910.103O(f)(2)(iii)         as

alleged in item 1a of Citation 1, issued to Respondent     on May 5, 1995.



                                               ORDER
         1. Item 1a of Citation 1, issued to Respondent on May 5, 1995 is VACATED.




                                                         Michael H. Schoenfeld
                                                         Judge, OSHRC
Dated:
                 MiRY28I996
                 Washington, D.C.