By Michael Metz-Topodas and Jacob Tosti, Saul Ewing LLP
A decades-old Occupational Safety and Health Administration (OSHA”) requirement has come to an end. Certain employers no longer need to record employees’ work-related mental illness on OSHA’s record-keeping forms due to a recent decision from the United States Court of Appeals for the Fifth Circuit in Exxon Mobil Corporation v. Occupational Safety and Health Review Commission. The court determined OSHA lacked authority to issue that rule under the Occupational Safety and Health Act (the “OSH Act”).
After an Exxon Mobil (“Exxon”) employee assisted firefighters at the scene of a petroleum refinery explosion and fire in Texas, the employee sought medical evaluation and counseling for anxiety. Two licensed clinical social workers, the employee’s primary care doctor, and a licenses psychologist all diagnosed the employee with post-traumatic stress disorder stemming from the incident.
After receiving these diagnoses, Exxon determined it did not need to record the employee’s illness on its OSHA-required injury and illness log or incident form, OSHA Forms 300 and 301 respectively, based on 29 C.F.R. 1904.5(b)(2)(ix) (the “Rule”). As Exxon read the Rule, it did not need to record any employee’s mental illnesses “unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience . . . stating that the employee has a [work-related] mental illness.”
Because Exxon found three of the employee’s health care providers lacked “appropriate training and experience” to diagnose recordable work-related mental illnesses and because the employee’s psychologist’s diagnosis contradicted the one Exxon’s doctor made based on reviewing the employee’s file, Exxon concluded the employee did not have a recordable work-related mental illness.
Upon the employee’s union reporting Exxon’s decision to OSHA, the agency issued a Citation and Notification of Penalty to Exxon for failing to record the employee’s PTSD diagnosis on OSHA Forms 300 and 301, and Exxon contested the citation. Following a hearing before an administrative law judge (“ALJ”), the court affirmed the citation, and the Occupational Safety and Health Review Commission declined further review. Exxon appealed to the Fifth Circuit on the ground, among others, that the OSH Act does not authorize OSHA to require employers to consider mental illnesses in their record-keeping obligations in light of the recent U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (“Loper Bright”).
In Loper Bright, the Supreme Court ruled that where an agency, like OSHA, interprets ambiguity in any statute, including the statute granting the agency its power, like the OSH Act does for OSHA, courts need not defer to such agency interpretations. Instead, courts “must exercise their independent judgment in deciding whether an agency acted within its statutory authority,” 603 U.S. at 412. The Fifth Circuit requires a court performing this analysis to use “‘all relevant interpretive tools’ to determine the ‘best’ reading of a statute; a merely ‘permissible’ reading is not enough.” Mayfield v. Dep’t of Lab., 117 F.4th 611, 617 (5th Cir. 2024) (quoting Loper Bright, 603 U.S. at 400).
In applying these standards, the Fifth Circuit observed that the OSH Act states that OSHA “shall prescribe regulations requiring employers to maintain accurate records of . . . work-related . . . injuries and illnesses . . . .” 29 U.S.C. § 657(c)(2). Because, contrary to OSHA’s interpretation of this language, the statute requires reporting only “illnesses,” not necessarily both physical and mental illnesses, the Court had to “ascertain the best reading of that term.” The Court found that the OSH Act’s use of illnesses pertains only to physical illnesses for several reasons:
– Reading “injuries and illnesses” together, along with the statute’s exceptions for certain physical injuries, support a conclusion that the statute “concern[s] . . . physical, not mental, workplace harms”;
– Other reporting requirements in the same statutory section pertain only to “physical dangers of the workplace”;
– OSHA’s recording-keeping requirements sit within “a larger inspection regime” to examine workplace “conditions, structures, machines, apparatus, devices, equipment, and materials,” all of which are “categories of things that risk physical harm,” (emphasis in original)
– Several contemporaneous dictionary definitions of “illness” do not “expressly contemplate non-physical conditions.”
Because the requirement to report “illnesses” under the OSH Act relates only to physical work-related ailments and conditions, OSHA exceeded its statutory authority in promulgating the Rule that requires employers to record work-related, non-physical, mental illnesses. With no basis for OSHA to issue the Rule, the Court had no choice but to vacate such rule along with the citation and penalty under it imposed on Exxon.
Due to this decision, employers in Louisiana, Mississippi, and Texas (the Fifth Circuit) no longer need to record work-related mental illnesses on their OSHA 300 log or a 301 report. Moreover, should in the future OSHA attempt to promulgate or enforce rules or issue citations pertaining to employee mental illnesses, OSHA may face a similar Loper Bright challenge to such rule or enforcement activity.
The availability of such a Loper Bright defense, however, should not necessarily alter employers’ compliance programs. OSHA regulations and standards set a legal compliance floor, not a workplace safety ceiling. Separate and apart from any legal requirement, employers have good reasons to continue policies and practices related to employee mental health illnesses and issues and to document and address related employee matters, especially those work-related. An internal policy concerning confidential reporting and documentation of employee mental illness, for example, may support disability accommodation and workers’ compensation compliance initiatives. The Fifth Circuit decision does not render such policies illegal, only that the underlying workplace mental illness issues fall outside OSHA’s purview.
More broadly, the Fifth Circuit’s decision demonstrates the powerful new defense employers have based on the Loper Bright decision in contesting an OSHA citation. Where OSHA attempts to enforce a rule created under a reading of ambiguous OSH Act language about the agency’s power, employers can challenge such interpretation as leading to a rule OSHA does not have the power to create or enforce. In ruling on such challenges, courts no longer have to defer to agency interpretations of the OSH Act, as courts had to do before the Loper Bright decision. Instead, a court may use its independent judgment to determine whether OSHA properly determined that the statute afforded it the power to issue and enforce the rule in question. In exercising such judgment, courts may override OSHA’s interpretation of its statutory authority. Thus, each citation potentially affords a new opportunity to reconsider the scope and reach of OSHA’s rulemaking and enforcement power. For employers deciding whether and how to assert a Loper Bright defense in response to a citation or other enforcement action, they should consult with legal counsel experienced in such issues.
About the authors:
Michael Metz-Topodas is a partner in the Construction Group at Saul Ewing LLP. His practice includes construction litigation, day-to-day project and claims counseling, contract review, drafting and negotiations, bid preparation and bid protests, along with OSHA compliance and enforcement defense. In his OSHA practice, he has represented clients before the OSHRC and advised clients on dozens of citation contests, investigation demand responses, and safety standards compliance matters. Mr. Metz-Topodas represents general contractors, subcontractors, owners, designers, and suppliers on private, public, and federal projects and handles all forms of construction disputes. He can be reached at michael.metz-topodas@saul.com.
Jacob Tosti is an associate at Saul Ewing LLP. He represents businesses, educational institutions, nonprofits, and executives in labor and employment matters and complex commercial disputes. He can be reached at jacob.tosti@saul.com.
