                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-4-2008

Secretary Labor v. Beverly Healthcare
Precedential or Non-Precedential: Precedential

Docket No. 06-4810




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                                          PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 06-4810


              SECRETARY OF LABOR,

                             Petitioner

                            v.

      BEVERLY HEALTHCARE-HILLVIEW;
   OCCUPATIONAL SAFETY & HEALTH REVIEW
              COMMISSION,

                           Respondents


      On Petition for Review of a Decision and Order
of the Occupational Safety and Health Review Commission
           (OSHRC Nos. 04-1091 and 04-1092)


                Argued June 4, 2008
             Before: FISHER, JORDAN
        and VAN ANTWERPEN, Circuit Judges.

               (Filed: September 4, 2008)
Ronald J. Gottlieb (Argued)
Charles F. James
Nathaniel I. Spiller
United States Department of Labor
Office of the Solicitor
Room S-4004
200 Constitution Avenue, N.W.
Washington, DC 20210
       Attorneys for Petitioner

Michael S. Glassman (Argued)
Jennifer K. Swartz
Dinsmore & Shohl
255 East Fifth Street
1900 Chemed Center
Cincinnati, OH 45202

Sheldon N. Sandler
Young, Conaway, Stargatt & Taylor
1000 West Street
17th Floor, Brandywine Building
P.O. Box 391
Wilmington, DE 19899-0391
       Attorneys for Respondent, Beverly
       Healthcare-Hillview




                OPINION OF THE COURT



                             2
FISHER, Circuit Judge.

        This case originates from the issuance of two citations by
the Occupational Safety and Health Administration (“OSHA”)
to Beverly Healthcare-Hillview (“Beverly”) for failure to
compensate employees for travel expenses and non-work time
spent receiving treatment pursuant to the Bloodborne Pathogens
Standard, which requires employers to make treatment available
“at no cost to employees” for occupational exposure to
bloodborne pathogens. Beverly challenged these citations,
arguing that the “at no cost” provision should be read narrowly
and did not include such costs. The ALJ disagreed and upheld
the citations. Beverly appealed to the Occupational Safety and
Health Review Commission (“Commission”), which reversed,
finding that Beverly did not have fair notice of the Secretary of
Labor’s (“Secretary”) broad interpretation. The Secretary timely
filed a petition for review. For the reasons that follow, we will
grant the petition and vacate the decision of the Commission.

                                I.

                               A.

        In 1970, Congress adopted the Occupational Safety and
Health Act (“OSH Act”) after finding that “personal injuries and
illnesses arising out of work situations impose a substantial
burden upon, and are a hindrance to, interstate commerce in
terms of lost production, wage loss, medical expenses, and
disability compensation payments.” 29 U.S.C. § 651(a). The
stated purpose for the adoption of the OSH Act was “to assure
so far as possible every working man and woman in the Nation

                                3
safe and healthful working conditions to preserve our human
resources.” Id. § 651(b). Under the OSH Act, the Secretary is
empowered to “set mandatory occupational safety and health
standards” for employers and to issue citations when employers
fail to comply with these standards. Id. §§ 651(b)(3), 655,
658(a). Violations of these standards are termed “willful,”
“repeated,” “serious,” or “not serious.” Id. § 666. “Not serious”
penalties may be subject to civil fines of up to $7,000. Id.
§ 666(c). If an employer wishes to contest a citation, it is
entitled to a hearing before an Administrative Law Judge
(“ALJ”). 29 U.S.C. § 661(j). A party that disputes the decision
of the ALJ may petition the Commission for discretionary
review. Id.; 29 C.F.R. § 2200.91. An aggrieved party may
petition the Court of Appeals for review of the Commission’s
final order. Id. § 661.

       In 1991, the Secretary promulgated the Bloodborne
Pathogens Standard (“BPS”), 29 C.F.R. § 1910.1030, pursuant
to a specific Congressional directive aimed at combating
“occupational exposures to the hepatitis B virus, the human
immunodeficiency virus and other bloodborne pathogens.”
Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act, Pub. L.
No. 102-170 § 100, 105 Stat. 1107, 1113 (1992). In drafting the
BPS, the Secretary acted under the authority granted by the OSH
Act to

       “where appropriate . . . prescribe the type and
       frequency of medical examinations or other tests
       which shall be made available, by the employer or
       at his cost, to employees exposed to such hazards

                               4
       in order to most effectively determine whether the
       health of such employees is adversely affected by
       such exposure.”

29 U.S.C. § 655(b)(7). The BPS applies to all “occupational
exposure” which might be “reasonably anticipated [to lead to
employee] contact with blood or other potentially infectious
materials.” 29 C.F.R. § 1910.1030(a), (b). Such “exposure
incidents” include “needlesticks,” one of a number of events that
involve “piercing mucous membranes or the skin barrier.” Id.
§ 1910.1030(b). Pursuant to subsection (f)(1)(i) of the BPS,
“[t]he employer shall make available the hepatitis B vaccine and
vaccination series to all employees who have occupational
exposure, and post-exposure evaluation and follow-up to all
employees who have had an exposure incident.” Additionally,
under subsection (f)(1)(ii),

       [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) Made available at no cost to the
       employee;

             (B) Made available to the employee at a
       reasonable time and place[.]




                               5
Id. § 1910.1030(f)(1)(ii). The preamble to the BPS explains the
impetus for requiring employers to pay for the costs of their
employees exposure incidents. It states:

       “Numerous testimony and comment on the
       proposed rule stated the necessity that Hepatitis B
       vaccination and post-exposure evaluation and
       follow-up be made available by the employer at
       no cost to the employee . . . . This is consistent
       with OSHA policy, as stated in the Occupational
       Safety and Health Act of 1970 (OSH Act) . . . . In
       addition, some commenters noted that an
       important factor in successful vaccination
       programs was providing the vaccination at no cost
       to the employee.”

56 Fed. Reg. 64, 153 (1991).

       OSHA has subsequently issued a series of compliance
directives, stating that “[t]he term ‘at no cost to the employee’
means, among other things, no ‘out-of-pocket’ expense to the
employee.” See OSHA Compliance Directive CPL 2-2.69; CPL
2-2.44C; CPL 2-2.44D.1 In addition, OSHA’s Director of
Compliance Programs issued an opinion letter on July 7, 1999
(“1999 OSHA opinion letter”), in which it addressed two


       1
        The 1999 directive, CPL 2-2.44D, cancelled the 1992
directive, CPL 2-2.44C. The 2001 directive, CPL 2-2.69,
cancelled the 1999 directive, and was in effect during all times
relevant to this case.

                               6
specific questions regarding application of the BPS: (1) “[m]ust
the employer either provide or pay for transportation to and from
the site where the Hepatitis B vaccination will be administered?”
and (2) “[a]re all activities associated with obtaining a Hepatitis
B vaccination, in fact, work functions and, consequently, is all
time associated with receipt of vaccination work time?” In
response to the first question, OSHA stated that “[w]hile
transportation may not need to be provided by the employer, its
cost must be covered by the employer.” The letter also
addressed the second question, explaining that “when receiving
the vaccine or commuting to have it administered, employees
must be considered ‘on-duty.’” It is undisputed that the
regulation, its preamble, the compliance directives, and the 1999
OSHA opinion letter were publicly available at all relevant
times during the course of this litigation.

                                B.

        Beverly owns and operates a nursing home in Altoona,
Pennsylvania. Beverly employs approximately 110 people
including Vicki Pacovsky and Darryl Kosanovich, both of whom
work as nurses at the nursing home. On December 8, 2002,
Pacovsky received a “needlestick” while at the workplace, and
on January 4, 2004, Kosanovich also received a “needlestick”
while at work. Each sought treatment at the end of his or her
respective 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 for the cost of the medical
evaluations and procedures, but did not reimburse the employees
for the non-work hours they spent receiving either the initial or
follow-up treatments. Beverly also did not compensate the

                                 7
employees for travel time or expenses with respect to these
treatments.

       After each incident, OSHA inspected the workplace and
issued an “other-than-serious” citation for violation of 29 C.F.R.
§ 1910.1030(f)(1)(ii)(A), due to Beverly’s failure to provide
post-exposure evaluation and testing “at no cost to the
employee.” 2 Beverly timely contested these citations.

        On March 28, 2005, the ALJ issued a decision and order
upholding the citations. She held that the “at no cost” language
required Beverly to pay for travel time and expenses. She also
held that Beverly was required to compensate Pacovsky and
Kosanovich for the non-work time they spent undergoing the
evaluations and procedures. Her interpretation relied on the
dictionary definition of “cost” and the preamble to the BPS,
stating that the purpose of the regulation was to induce
compliance and thereby reduce the number of infections. She
therefore determined that the employees incurred “costs” by
expending time and effort securing post-exposure evaluation
and treatment outside of work hours and traveling to and from
the treatment facility. She opined that these costs operated as a
disincentive to employees’ voluntary participation in the
program, and would therefore defeat its purpose.




       2
        The citation for the “Pacovsky” incident was issued on
September 19, 2003, and the citation for the “Kosanovich”
incident was issued on May 21, 2004.

                                8
       Based on this analysis, the ALJ determined that the term
“at no cost to the employee” was clear and unambiguous, and
that regardless, any ambiguity was resolved by the Secretary’s
reasonable interpretations as set forth in the current OSHA
compliance directive, two predecessor directives, and the 1999
OSHA opinion letter. She also found that the Secretary had
provided constitutionally adequate notice that the BPS required
employers to compensate employees for the travel expenses and
non-work time related to their evaluation and treatment. She
therefore ordered Beverly to reimburse Pacovsky and
Kosanovich for the time spent receiving evaluation and
treatment during non-work hours and for travel expenses.

        The Commission granted Beverly’s petition for
discretionary review. A two-member majority found that the “at
no cost” provision of the BPS was ambiguous, but that the
Secretary’s interpretation – that “cost” included non-work time
and travel expense – was reasonable. Despite this finding, the
majority held that neither the BPS itself, nor any other materials
available to Beverly, explained with “ascertainable certainty”
that the BPS required employers to compensate employees for
travel costs and non-work time, and thus, the Secretary had
failed to provide “fair notice” of its interpretation. The lone
dissenting member of the Commission agreed with the majority
that the provision was ambiguous and that the Secretary’s
interpretation was reasonable, but stated that the 1999 OSHA
opinion letter provided sufficient notice of the Secretary’s
interpretation to allay due process concerns. The Secretary
timely filed a petition for review.



                                9
                                II.

       We exercise jurisdiction over the Secretary’s petition for
review pursuant to 29 U.S.C. 660(b). We accord “substantial
deference” to the Secretary’s interpretation of a regulation
promulgated by her agency. Martin v. Occupational Safety and
Health Review Comm’n, 499 U.S. 144, 150 (1991). “[T]he
Commission, and ultimately the court of appeals, review the
Secretary’s interpretation to assure that it is consistent with the
regulatory language and is otherwise reasonable.” Id. at 156.
We will decide all relevant questions of law, and interpret
constitutional and statutory provisions. 5 U.S.C. § 706. In
addition, we will “hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
Id. § 706(2)(A). Issues of law are subject to plenary review.
Dole v. E. Penn Mfg. Co., 894 F.2d 640, 643 (3d Cir. 1990).

                               III.

                                A.

        Before we assess whether the Secretary’s interpretation
of the BPS is reasonable or whether Beverly had fair notice of
that interpretation, we must determine whether the meaning of
regulatory language is “free from doubt.” Martin, 499 U.S. at
150 (internal citation and quotation marks omitted). Beverly
contends that, as a threshold matter, the “plain language” of the
BPS unambiguously excludes compensation for non-work time
and travel expenses from Beverly’s obligations to its employees
under the “at no cost” provision, and therefore, no alternate

                                10
interpretation of the Secretary could possibly be reasonable. If
Beverly is correct, our inquiry would be at an end. See Dir.,
OWCP v. E. Associated Coal Corp., 54 F.3d 141, 147 (3d Cir.
1995) (“The responsibility to promulgate clear and unambiguous
standards is upon the Secretary. The test is not what he might
possibly have intended, but what he said.”). However, if we
determine that the language is not “free from doubt,” we will
defer to the Secretary’s interpretation if it “sensibly conforms to
the purpose and wording of the regulations.” Martin, 499 U.S.
at 151.

          A regulation is ambiguous when it is “not free from
doubt,” Martin, 499 U.S. at 150, and where no particular
interpretation of the regulation is “compelled by the regulation’s
plain language or by other indications of the [agency’s] intent at
the time of promulgation of the regulation.” Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 512 (1994). Because the term
“cost,” as utilized in the BPS, has a number of common
definitions and can “comfortably bear” multiple interpretations,
see Auer v. Robbins, 519 U.S. 452, 461 (1997), the plain
language of the BPS does not compel any one particular
interpretation. Cf. Verizon Communications, Inc. v. F.C.C., 535
U.S. 467, 500 (2002) (“The fact is that without any better
indication of meaning than the unadorned term, the word ‘cost’
. . . is ‘a chameleon,’ . . . a ‘virtually meaningless’ term . . . .”).
Moreover, aside from the statement in the preamble to the BPS
generally stressing the importance of the “at no cost” provision
in achieving the goals of the OSH Act, neither party has pointed
to any indication contemporaneous with promulgation
unequivocally stating the agency’s intent to interpret the
provision in a particular way. Therefore, and for the reasons

                                  11
that follow, we conclude that the Commission did not err in
determining that the language of the BPS is ambiguous.

        Beverly argues that the regulation is not ambiguous and
that it “fully complied with the plain language of the [BPS].”
Beverly contends that the “at no cost” language unambiguously
includes only the cost of post-exposure evaluation and follow-up
and does not encompass compensation for non-work time or
travel expenses. Beverly correctly observes that the BPS does
not specifically direct employers to compensate employees for
their time or travel expenses. While the Secretary interprets the
term “cost” to encompass travel expenses and non-work time,
Beverly alleges, without citation, that “[t]he ordinary meaning
of ‘cost’ is the amount charged to purchase goods or services.”
In Beverly’s view, employees have not been “charged” for non-
work time or travel expenses, and are therefore not entitled to be
compensated for these sums.

       Beverly proffers the mandatory declination form required
by the BPS as evidence that “cost” is meant to encompass only
“charges” for goods and services. The form reads, in relevant
part:

       If in the future I continue to have occupational
       exposure to blood or other potentially infectious
       materials and I want to be vaccinated with
       hepatitis B vaccine, I can receive the vaccination
       series at no charge to me.

29 C.F.R. § 1910.1030, App. A. In addition, Beverly points out
that a number of other OSHA standards require that medical

                               12
surveillance be made available or provided at no cost to the
employee, but include the additional language, “without loss of
pay.” See, e.g., 29 C.F.R. § 1910.1018 (inorganic arsenic
standard) (stating that medical surveillance “shall be provided
without cost to the employee, without loss of pay and at a
reasonable time and place”).

        However, as our sister circuit noted in construing a
similar provision of the inorganic arsenic standard, “‘cost’ has
many common meanings.” Phelps Dodge v. Occupational
Safety and Health Review Comm’n, 725 F.2d 1237, 1239 (9th
Cir. 1984) (Phelps Dodge II). Some of these meanings include
“‘the amount or equivalent paid or given or charged . . . ,’
‘whatever must be given, sacrificed, suffered, or foregone to
secure a benefit . . . ,’ and ‘the expenditure or outlay of money,
time or labor . . . .’” See Sec’y of Labor v. Phelps Dodge Corp.,
11 O.S.H. Cas. (BNA) 1441, 1444 (Rev. Comm’n 1983) (Phelps
Dodge I) (citing Webster’s Third New International Dictionary
(1971)). In Phelps Dodge I, the Commission adopted the
Secretary’s broad interpretation of “cost,” an interpretation
virtually identical to the one proffered here, holding that
“employees given examinations during non-working hours”
have incurred a “cost” cognizable under the regulation and
should “be paid for their time.” Phelps Dodge I, 11 O.S.H. Cas.
(BNA) at 1444. In addition, the Commission found that
“[e]mployees who are not reimbursed for extra transportation
expenses incur a ‘cost’ in the plainest and most natural sense of
the word.” Id. The Court of Appeals for the Ninth Circuit
affirmed. See Phelps Dodge II, 725 F.2d at 1240.



                               13
        With respect to Beverly’s other arguments, the term “at
no charge” in the declination letter is nearly as susceptible to
broad or narrow interpretations as the term “at no cost.” The
terms “charge” and “cost,” as used in this context, are
functionally more similar than they are different. A “charge” is
an “expenditure or expense incurred,” which might naturally
include travel expenses and compensation for non-work time.
Webster’s Third New International Dictionary 377 (1971).
Moreover, Beverly’s reliance on the existence of the “without
loss of pay” phrase in regulations other than the BPS is
misplaced for purposes of determining whether the plain
language of the BPS is itself ambiguous.3 As the Phelps Dodge
decisions illustrate, the “at no cost” portion of the regulation
may still be read broadly to include employees’ non-work time
and travel expenses, notwithstanding the existence of the
“without loss of pay” provision in that case. See Phelps Dodge
II, 725 F.2d at 1239.

       In light of this, we agree with the unanimous view of the
Commission that the language of the “at no cost” provision of
the BPS is ambiguous, and therefore, as “the regulatory
language is not free from doubt,” we will “give effect to the
[Secretary’s] interpretation so long as it is reasonable.” Martin,
499 U.S. at 150. It is that question to which we now turn.




       3
        It may, however, affect whether Beverly received fair
notice of the Secretary’s interpretation. See Part III.C., infra.

                               14
                              B.

        The Secretary maintains that her interpretation of the
BPS’s “at no cost” language to include compensation for non-
work time and travel expenses is reasonable. This conclusion is
also consistent with the unanimous view of the Commission,
which determined that the Secretary’s broad reading of the “at
no cost” provision conformed to the “purpose and wording” of
the BPS, and that without “such compensation, the likelihood
that an employee will obtain necessary medical treatment
declines.” The Commission also observed that the preamble to
the BPS reiterates the “at no cost” language, and restates its
importance in achieving the goals of the OSH Act, therefore
justifying a broad reading.

        We agree with the Commission that the Secretary’s broad
interpretation of the “at no cost” provision is reasonable. The
Secretary’s interpretation is based on an accepted dictionary
definition of the term “cost” and does not impermissibly strain
the plain language of the regulation. Moreover, as explained by
the Commission, the Secretary’s broad interpretation comports
with the BPS’s purpose in encouraging employees to seek
evaluation and treatment for occupational exposure. Plainly,
compensating employees for their time and effort in undergoing
testing and evaluation is an effective way to ensure that
employees who have potentially been exposed to a bloodborne
pathogen pursue testing.

       Before us, Beverly argues that even if the Commission
correctly determined that the “at no cost” provision is
ambiguous, the Secretary’s interpretation is nonetheless

                              15
unreasonable. First, Beverly argues that the Secretary’s
interpretation “fails to comport with the purpose and wording in
the [BPS].” Curiously, Beverly does not directly address the
Secretary’s contention that “cost” can reasonably be interpreted
as “the expenditure or outlay of money, time or labor.” Nor
does it make any other argument specifically contending that the
language of 29 C.F.R. § 1910.1030(f)(1)(ii)(A) cannot
“comfortably bear[]” the meaning assigned by the Secretary.
See Auer, 519 U.S. at 461.

        Instead, Beverly asserts that it is the Secretary’s position
that the source for any requirement that an employer must
compensate its employees for non-work time and travel
expenses would be § 1910.1030(f)(1)(ii)(B), the “[m]ade
available to the employee at a reasonable time and place”
provision. Building on this premise, Beverly contends that
because it was cited only for violation of subsection (f)(1)(ii)(A)
– the “at no cost” provision – and not for violation of subsection
(f)(1)(ii)(B), it would be improper to impose costs that could
only arise, pursuant to its characterization of the Secretary’s
position, under (f)(1)(ii)(B).

       This argument is a straw man and a mischaracterization
of the Secretary’s position. The Secretary does not actually
argue that the “at a reasonable time and place” provision is the
source of the requirement that employers must compensate
employees for non-work time and travel expenses. Throughout
her brief, the Secretary repeatedly argues that the “at no cost”
provision is the source of the requirement. The Secretary cites
subsection (f)(1)(ii)(B) only for the proposition that while “it
may be reasonable for an employer to require an employee to

                                16
seek post-exposure evaluations and procedures during non-work
time,” under subsection (f)(1)(ii)(B), “[i]t is not reasonable,
however, to shift the cost of that choice onto an employee”
under subsection (f)(1)(ii)(A). Since it is the cost, and not the
reasonable availability of evaluation and treatment that is at
issue here, it is plainly the Secretary’s interpretation of
subsection (f)(1)(ii)(A) that matters. Therefore, Beverly’s
argument that it was not cited for a violation of subsection
(f)(1)(ii)(B) is to no avail, as its compliance with that subsection
was never at issue.4

      Consequently, the Commission did not err when it
determined that the Secretary’s interpretation of the “at no cost”


       4
        Beverly does not argue that the very existence of the
“reasonable time and place” provision undermines the
reasonableness of the Secretary’s reading of the “at no cost”
provision to include compensation for travel expenses and non-
work time, as it is possible that the “reasonable time and place”
provision might itself conceivably be interpreted to require
employers to compensate employees for travel expenses and
non-work time. Nonetheless, the Secretary’s construction of the
regulatory framework is reasonable. A natural reading of
subsection (f)(1)(ii)(B) suggests that it is aimed at ensuring that
employers do not deny employees reasonable access to
evaluation if they have potentially been exposed to a bloodborne
pathogen. Notably, this subsection does not mention cost at all.
Under this framework, subsection (f)(1)(ii)(A) therefore
concerns all questions of cost. Since this view is reasonable, we
will defer to the Secretary’s interpretation.

                                17
provision was reasonable and consistent with the language and
purpose of the regulation.

                                C.

         As explained previously, a two-member majority of the
Commission determined that Beverly did not have fair notice of
the Secretary’s broad interpretation of the BPS, despite finding
that it was a reasonable interpretation. Specifically, the majority
concluded that neither the regulation itself, its preamble, nor any
other documentation issued by the Secretary explained with
“ascertainable certainty” what the BPS requires, relying on the
standard laid out in Gates & Fox Co. v. Occupational Safety and
Health Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986)
(citing Diamond Roofing Co. v. Occupational Safety and Health
Review Comm’n, 528 F.2d 645, 649 (5th Cir. 1976)). The
majority considered, but discounted, the premise that the 1999
OSHA opinion letter, which stated that travel expenses are
compensable and that an employee is considered “on-duty”
when receiving evaluation or treatment, provided sufficient
notice of the Secretary’s interpretation of the BPS. It discounted
the 1999 letter in part because it was, in its eyes, “at odds” with
a 1987 Department of Labor letter interpreting the Fair Labor
Standards Act (“FLSA letter”), which stated that “[i]n order for
time spent waiting for or receiving medical attention or
treatment to be compensable, the visit to the doctor must be at
the direction of the employer and it must occur during the
employees’s normal work hours on days when the employee is
working.” The majority stated that regardless, the Secretary had
ample opportunity to “formalize” her opinion on the matter, and
that even without the “conflicting” FLSA letter, the most recent

                                18
compliance directives were “studiously vague” in interpreting
the provision.

        The dissenting member of the Commission disagreed,
concluding that the 1999 OSHA opinion letter militated for a
finding of fair notice. The dissent observed that the letter
predated the cited conduct, and directly addressed both travel
expenses and non-work time compensation. The dissent
questioned the majority’s reliance on the FLSA letter, noting
that it was promulgated by a different agency under a different
statute, likely mitigating much of the possible confusion it might
have caused. The dissent, relying on Corbesco v. Sec’y of
Labor, 926 F.2d 422, 428 (5th Cir. 1991), suggested that,
moreover, even if the two letters created some confusion, they
at least provided “enough notice such that Beverly should have
inquired of OSHA.” 5 For the reasons that follow, we hold that
Beverly had fair notice of the Secretary’s interpretation.




       5
         In Corbesco, the Court of Appeals for the Fifth Circuit
determined that even where the language of a particular
regulation was “imprecise,” the fact that the Commission had
interpreted that language in a number of decisions created a duty
on the part of the employer “to at least inquire” with respect to
its obligations under the regulation. Corbesco v. Sec’y of Labor,
926 F.2d 422, 428 (5th Cir. 1991). Because we explain, infra,
that the Secretary provided sufficient notice to allay fair notice
concerns in this case, we need not address whether Beverly had
a duty to inquire.

                               19
        Beverly argues that the Commission correctly determined
that Beverly lacked constitutionally adequate notice because
neither the regulation nor any other documents explained, with
“ascertainable certainty,” that compensation of non-work time
and travel expenses was required by the BPS. Beverly asserts
that “if the term ‘cost’ is ambiguous, the [BPS] is
unconstitutional because it fails to give notice of what is
required of employers.” Although we have indeed determined
that the “at no cost” provision is ambiguous in this context, this
alone is not sufficient to deprive Beverly of fair notice.

        We have previously cited with approval the line of cases
enunciating “ascertainable certainty” as the applicable standard
for fair notice. See Dravo Corp. v. Occupational Safety and
Health Review Comm’n, 613 F.2d 1227, 1232 (3d Cir. 1980)
(citing Diamond Roofing, 528 F.2d at 649). But, as the Court of
Appeals for the First Circuit explained in United States v.
Lachman, that line of cases

       do[es] not stand for the proposition that any
       ambiguity in a regulation bars punishment.
       Rather, they are addressed only to situations in
       which: (1) the agency had given conflicting
       public interpretations of the regulation, or, (2) the
       regulation is so vague that the ambiguity can only
       be resolved by deferring to the agency’s own
       interpretation of the regulation (i.e., a situation in
       which the ambiguity is resolved by something
       comparable to a step-two analysis under
       Chevron), and the agency has failed to provide a


                                20
       sufficient, publicly accessible statement of that
       interpretation before the conduct in question.

387 F.3d 42, 57 (1st Cir. 2004). Here, because the Secretary has
not given “conflicting interpretations” of the BPS and has
provided “a sufficient, publicly accessible statement of her
interpretation” prior to the issuance of the two citations in
question, Beverly’s fair notice argument fails.

       First, the 1999 OSHA opinion letter adequately and
publicly stated the Secretary’s position that “[transportation
cost[s] must be covered by the employer” and that “employees
must be considered ‘on-duty’” when receiving post-exposure
treatment. Beverly argues that this letter is insufficient to
provide fair notice because the letter “fails to comport with the
wording in the [BPS].” In effect, Beverly contends that because
the “at no cost” provision is open to interpretation, it does not
clearly require compensation for travel expenses or non-work
time, and therefore, the 1999 interpretation letter incorrectly
interpreted the BPS. This argument is circular. It is precisely
because the regulation is ambiguous that it must be interpreted,
and the Secretary here has provided such an interpretation. As
such, the agency has not “failed to provide a sufficient, publicly
accessible statement” that the BPS required Beverly to
compensate its employees for travel expenses and non-work
time. Lachman, 387 F.3d at 57.

       The decisions in Phelps Dodge I and II provided
additional notice to Beverly that the BPS required compensation
of employees for travel expenses and non-work time. Beverly
contends that these decisions are not analogous to the present

                               21
case, and in fact create additional confusion. It again points to
the existence of the “without loss of pay” provision included in
the regulation, asserting that it is this provision, notably absent
from the BPS, that requires employers to compensate employees
for non-work time. This argument fails to acknowledge that the
Court in Phelps Dodge II clearly construed the word “cost” and
the Secretary’s proffered interpretation of the “without cost”
provision, not the “without loss of pay” provision:

       The word “cost” has many common meanings.
       Here, the Secretary interpreted the phrase
       “without cost” in a broad sense in accordance
       with the preamble’s statement that the exams be
       given “without loss to the employee to assure that
       they are taken.” The dramatic drop in employee
       participation after employees were required to
       take examinations on their own time and to
       provide their own transportation demonstrates the
       reasonableness of the Secretary's interpretation.
       We affirm the decision of the Commission.

725 F.2d at 1239. Thus, regardless of some variation in
language between the BPS and the inorganic arsenic standard,6


       6
         Beverly also takes issue with the fact that the inorganic
arsenic standard contained language in its preamble stating that
“the employer is obligated to pay for the time spent taking the
medical examination if it is taken outside normal working
hours. . . . It is necessary that exams be convenient and without
loss to the employee to assure that they are taken.” 43 Fed. Reg.

                                22
these published opinions provided additional notice that the
Secretary had already interpreted the term “cost” broadly, and
that at least one Court of Appeals found this interpretation to be
reasonable.7



19621 (1978). The BPS contains no such language either in the
regulation itself or the preamble. However, as the Secretary
points out, the BPS was written seven years after the Ninth
Circuit upheld the Secretary’s interpretation of the word “cost”
in Phelps Dodge II. Thus, in terms of fair notice, there was no
express requirement that the Secretary repeat this statement in
the BPS, as the interpretation was already available to the
affected parties. Nonetheless, in the preamble to the BPS, the
Secretary explained that the “at no cost” provision is designed
to encourage post-exposure evaluation – the same purpose
enunciated in the inorganic arsenic standard. 29 C.F.R.
§ 1910.1030.
       7
        Moreover, Beverly had additional notice of the
Secretary’s interpretation prior to its failure to reimburse
Kosanovich for his travel expenses and non-work time. The
agency issued the Pacovsky citation on September 19, 2003, and
the Kosanovich needlestick did not take place until January 4,
2004. Therefore, the first citation provided Beverly with actual
notice of the Secretary’s interpretation of the “at no cost”
provision well before the second incident and citation.
Although “[t]he constitution does not demand that the employer
be actually aware that the regulation is applicable to his
conduct,” actual notice is sufficient. Faultless Div., Bliss &
Laughlin Indus, Inc. v. Sec’y of Labor, 674 F.2d 1177, 1185 (7th

                               23
        Finally, Beverly argues that certain other statements of
the Secretary either did not themselves provide fair notice, or in
fact deprived it of fair notice by creating confusion with respect
to its authoritative interpretation of the BPS, in effect creating
“conflicting public interpretations of the regulation.” See
Lachman, 387 F.3d at 57. First, Beverly points to the
compliance directives issued by the Secretary which state that
“[t]he term ‘at no cost to the employee’ means, among other
things, no ‘out-of-pocket’ expense to the employee.” See OSHA
Compliance Directives CPL 2-2.44C, CPL 2-2.44D, and CPL
2-2.69. Beverly argues that this definition does not provide
notice because it is vague and open to interpretation. However,
the question is not whether the directives provided fair notice,
but whether they so confused Beverly as to what was required
under the BPS, that the 1999 OSHA opinion letter and the
Phelps Dodge decisions failed to provide fair notice. While the
language used in the directives is not particularly helpful in
resolving the issue in the current instance, it does not contravene
the more applicable and specific language of the 1999 OSHA
opinion letter or the Phelps Dodge decisions, and thus the
directives are not conflicting public interpretations.

        Covering now familiar ground, Beverly also contends
that the “without loss of pay” provisions present in a number of
other OSHA standards, see, e.g., 29 C.F.R. § 1910.1052(j)(2)


Cir. 1982). See also Martin v. Occupational Safety and Health
Review Comm’n, 499 U.S. 144, 157 (1991) (“when embodied in
a citation, the Secretary's interpretation assumes a form
expressly provided for by Congress”).

                                24
(OSHA’s methylene chloride standard provides that “[t]he
employer shall provide all required medical surveillance at no
cost to affected employees, without loss of pay and at a
reasonable time and place”), themselves created confusion
sufficient to deprive it of fair notice of the Secretary’s
interpretation. Beverly argues it relied on the absence of this
provision in the BPS in assuming that the BPS did not require
compensation for travel expenses and non-work time. However,
while the meaning of this provision and the reasons for its
absence from the BPS are debatable, the question before us is
not whether Beverly properly interpreted the “without loss of
pay” provision or the meaning of its absence from the BPS. The
question is whether the absence of a “without loss of pay”
provision would be so confusing as to deprive Beverly of notice,
given the availability of the 1999 OSHA opinion letter and the
Phelps Dodge decisions. We do not believe that Beverly was
deprived of fair notice. The 1999 OSHA opinion letter
specifically addressed the issues in this case, and moreover, the
Phelps Dodge II decision expressly relied on the interpretation
of the “at no cost” provision, despite the presence of a “without
loss of pay” provision in the inorganic arsenic standard. Thus,
it was clear that presence or absence of the “without loss of pay”
provision did not affect the Secretary’s interpretation of “cost.” 8




       8
        Beverly also does not explain why the presence or
absence of the “without loss of pay” language should affect
whether it received fair notice that the BPS required the payment
of travel expenses.

                                25
        Beverly finally points to the FLSA letter, cited by the
Commission in its decision, in asserting that it was deprived of
fair notice due to substantial confusion among the Secretary’s
pronouncements. Beverly goes so far as to contend that the
FLSA letter is in “direct conflict” with the Secretary’s
interpretation here. However, this letter, which does not address
compensation for travel expenses at all, was issued by a
different agency and concerned a different regulation, which
was promulgated under a different statute. Moreover, it
predates the 1999 OSHA opinion letter. Therefore, because the
FLSA letter does not truly conflict with the 1999 OSHA opinion
letter, we disagree with the Commission’s majority opinion that
it deprived Beverly of fair notice. The FLSA letter interprets a
regulation only tenuously related to the issue here, and at any
rate, the 1999 OSHA opinion letter, which directly addresses the
BPS and the “at no cost” provision, occurred later in time and
would have superceded any contravening effect of the FLSA
letter interpretation. Beverly could not have been so confused
by the FLSA letter that it was deprived of fair notice, given the
existence of the subsequent 1999 OSHA opinion letter and the
Phelps Dodge decisions.

       In sum, the combination of the 1999 OSHA opinion letter
and the decisions in the Phelps Dodge case provided sufficient
notice of the Secretary’s interpretation of the “at no cost”
provision of the BPS to alleviate due process concerns. While
the directives, analogous regulations, and the FLSA letter may
not have themselves provided sufficient notice, they did not so
confuse the situation or conflict with the Secretary’s other public
pronouncements so as to deprive Beverly of fair notice, given
the existence of the 1999 OSHA opinion letter and the decisions

                                26
in the Phelps Dodge case. See Lachman, 387 F.3d at 57.
Therefore, we conclude that Beverly had fair notice of the
Secretary’s reasonable interpretation of the “at no cost”
provision of the BPS.

                              IV.

       For the foregoing reasons, we will grant the petition for
review, vacate the order of the Commission, and remand for
further proceedings consistent with this opinion.




                              27
