Work-Related Mental Illness Is No Longer an OSHA Recordable Illness (At Least in the Fifth Circuit)

One such regulation is 29 C.F.R. § 1904.5, which defines when an injury or illness is considered work-related. In 2001, the Clinton administration interpreted that regulation to include mental illness as work-related if supported by a medical opinion. See 29 C.F.R. § 1904.5(b)(2)(ix). This interpretation was recently tested following an appeal by ExxonMobil to the Fifth Circuit Court of Appeals.

Underlying Facts for Appeal
Following a December 2021 fire at an ExxonMobil refinery in Texas, an employee volunteered to assist the refinery’s emergency response team by showing firefighters which valves needed to be closed to shut off fuel to the fire. After the incident, the employee obtained a post-traumatic stress disorder diagnosis (PTSD) from four different providers. The employer requested another evaluation based on OSHA guidance permitting a second opinion if the employer does not believe the reported mental illness is work-related. This final evaluation determined the employee did not have work-related PTSD. Based on that opinion, the employer concluded the work-related mental illness was not recordable.

The union informed OSHA of the employer’s recordkeeping decision, and in June 2022, OSHA issued a $691 citation to the employer for failing to record the PTSD diagnosis as a work-related mental illness. The employer appealed the citation to the Occupational Safety and Health Review Commission (OSHRC), which assigned the matter to an administrative law judge (ALJ). After a four-day hearing, the ALJ affirmed the citation. The employer petitioned OSHRC for review of the ALJ’s decision. OSHRC did not direct the case for review, so the employer ultimately petitioned the Fifth Circuit for review.

The Fifth Circuit’s Analysis
The Fifth Circuit began its analysis with a reminder that agencies must have congressional authority for their decisions. To determine whether agencies have the congressional authority they claim, courts look to the statutory text. Citing Loper Bright’s direction for courts to exercise “independent judgment” in making the determination, the Fifth Circuit looked at whether 29 U.S.C. § 657(c)(2) allows OSHA to promulgate the mental illness recording rule at 29 C.F.R. § 1904.5(b)(2)(ix).

Because Section 657(c)(2) does not define “illnesses,” the Fifth Circuit considered statutory context, “dictionary definitions contemporaneous with the Act’s enactment,” and statutory delegation of power from Congress to OSHA. The Fifth Circuit concluded “illnesses” are “cabined to physical ailments” and that the “simple end” of OSHA’s recordkeeping requirements is “documentation of accidents, injuries, or illnesses caused by physical dangers of the workplace.” Dictionary definitions from “around 1970, when the Act was legislated” did not “contemplate non-physical conditions.”

The Fifth Circuit commended “OSHA’s desire to improve mental health in the workplace” and acknowledged OSHA’s interpretation of Section 657(c)(2) to include workplace mental illnesses “may be plausible.” But the Fifth Circuit reiterated the “best reading” of Section 657(c)(2) is narrower: “[I]llnesses” refers to “physical, not mental, work-related ailments and conditions.” Accordingly, the Fifth Circuit held that OSHA had exceeded its statutory authority in promulgating a regulation that required recording of “employee-reported work-related mental illnesses.” The Court vacated the citation, the penalty and the regulation itself.

Conclusion
Although the regulation may have survived under the former Chevron agency deference, the Fifth Circuit struck it down in July 2026 using its independent judgment under Loper Bright. As a result, work-related mental illnesses are no longer recordable, at least in the Fifth Circuit for employers in Texas, Louisiana and Mississippi. However, the Fifth Circuit’s ruling may foreshadow how the regulation is interpreted in other states under federal OSHA jurisdiction. It will also be interesting to see how other long-standing agency regulations are challenged under Loper Bright.

Contact your regular Pillsbury contact or the authors of this alert for questions regarding injury and illness recordkeeping.