Andrew Strom on the Fifth Circuit's OSHA Mental Health Ruling

Labor lawyer Andrew Strom, contributor to OnLabor, joined the America's Work Force Union Podcast to discuss a U.S. Fifth Circuit Court of Appeals ruling holding that the Occupational Safety and Health Administration (OSHA) lacks authority to require employers to report mental health injuries and illnesses as workplace incidents under the Occupational Safety and Health Act of 1970.

The case arose from an ExxonMobil petroleum refinery fire that burned for eight hours and left a worker with a diagnosis of post-traumatic stress disorder. Rather than ruling on the narrow factual question the parties actually disputed, a Trump-appointed judge writing for a three-judge Republican panel held that the word illnesses in the 1970 statute did not include mental illness — despite OSHA having required mental health injury reporting in regulations that went into effect in 2001 and remained on the books unchallenged for 25 years.

Strom said the ruling reflects a broader pattern of Fifth Circuit judges rewriting settled law rather than interpreting it, that Congress has had 25 years to challenge the regulation and did not and that the Trump administration is unlikely to appeal a ruling that aligns with its broader posture toward federal agency authority.

• The Occupational Safety and Health Act of 1970 directed OSHA to prescribe regulations requiring employers to maintain accurate records of and make periodic reports on work-related deaths, injuries and illnesses. OSHA issued regulations in 2001 requiring mental health injury reporting as part of that mandate. Those regulations remained in effect and unchallenged for 25 years through multiple presidential administrations before a three-judge Fifth Circuit panel ruled in an ExxonMobil case that the 1970 statute did not authorize mental health injury reporting. In the panel's view, Congress did not have mental illness in mind when it used the word illnesses in 1970.
• Strom described the ruling as inconsistent with basic principles of statutory interpretation: broad statutory language is intended to cover unforeseen circumstances. The Occupational Safety and Health Act was written to be broad enough to encompass discoveries and developments the U.S. Congress could not anticipate in 1970, as it did with black lung disease, AIDS, carpal tunnel syndrome and other conditions not yet understood when the law was passed. Justice Antonin Scalia wrote that unexpected applications of broad language reflect only Congress's presumed point to produce general coverage.
• The Fifth Circuit covers Texas, Louisiana and Mississippi and was designed to create law only for those three states. However, employers across the country can and do steer labor and employment cases there because the court reliably rules in favor of corporations and against workers. The Trump administration is unlikely to appeal the ExxonMobil ruling to the Supreme Court despite having the authority to do so, because doing so would conflict with the administration's broader posture of undermining federal agency authority. One in five American adults experiences mental illness, and workplace stress contributes to at least 120,000 deaths and $190 billion in healthcare costs annually, according to research cited in the case.

A Law Designed to Grow With What We Know

The Occupational Safety and Health Act was signed into law in 1970 under President Richard Nixon, one of the last pieces of significant bipartisan pro-worker legislation in American history. Its stated goal was to assure, so far as possible, every working man and woman in the nation safe and healthful working conditions. As part of that mandate, Congress directed the newly created Occupational Safety and Health Administration to require employers to maintain accurate records of and make periodic reports on work-related deaths, injuries and illnesses.

Andrew Strom said the word to focus on is illnesses. In 1970, most people understood workplace injuries and illnesses to mean physical harm: a crush injury, a laceration or exposure to a toxic substance. Congress, he said, understood something else as well — that the knowledge of what constitutes a safe and healthful workplace would change over time. That is how legislation is supposed to work. You do not rewrite the law every time medical science advances or a new hazard is identified.

He cited several examples to make the point. When the OSHA Act was passed in 1970, black lung disease was already a recognized condition, but there was a time not long before that when the connection between coal mining and lung disease was not understood. By the 1980s, AIDS was spreading among healthcare workers who were exposed on the job. No one in 1970 knew that was coming. Carpal tunnel syndrome, now understood as a repetitive stress injury common in many workplaces, was not a widely known condition in 1970. COVID-19 was not known anywhere until 2020. Congress writes broad laws because it understands that specific knowledge changes and the law needs to accommodate those changes.

Even Justice Scalia, Strom noted, the intellectual hero of the originalist right, wrote that unexpected applications of broad language reflect only Congress's presumed point to produce general coverage.

The ExxonMobil Case and What the Fifth Circuit Did

The specific case arose at a petroleum refinery. An employee responded to a fire and explosion that the court itself described as a hellish experience and a harrowing ordeal. The fire burned for eight hours. It took ExxonMobil five months to repair the damage. The employee was subsequently diagnosed with post-traumatic stress disorder.

OSHA cited ExxonMobil for failing to record the PTSD diagnosis as a work-related illness on its injury and illness log, a requirement under regulations that went into effect in 2001. ExxonMobil challenged the citation on a specific factual ground: the employee's doctor did not have, in the company's view, the appropriate training and experience to determine that the PTSD was work-related. That is the question the case was actually about.

The three-judge Fifth Circuit panel, led by President Donald Trump appointee Judge Corey Wilson, did not address that question. Instead, the panel ruled that OSHA had no authority to require mental health injury reporting in the first place. The panel held that when Congress used the word illnesses in the 1970 statute, it did not mean to include mental illness. Therefore, the 2001 regulation requiring such reporting exceeded OSHA's statutory authority and was invalid.

Strom said the implications of this logic are significant. If Congress in 1970 only meant the things it had in mind in 1970, then OSHA would also lack authority to require reporting of AIDS exposures, COVID-19 illnesses and any other condition not specifically understood when the law was written. That is not how legislation works. That is not how courts are supposed to interpret legislation. It is not how courts have interpreted this legislation over the past 25 years.

Twenty-Five Years of Settled Law

The 2001 OSHA regulation requiring the reporting of mental health injuries has been on the books for 25 years. Congress has had 25 years to object. Multiple presidential administrations, including Republican administrations under George W. Bush and Trump in his first term, had the opportunity to revisit the regulation. None of them did. OSHA itself could have rescinded the rule at any point. It did not.

Strom said this is how legislation is supposed to work: if a regulation is wrong, the legislative and executive branches have the tools to address it. What is not supposed to happen is three unelected judges deciding, a quarter century after the fact, to rewrite what a law means. He said this pattern — settled legal understanding overturned by a small panel of federal judges without congressional action — is recurring in Fifth Circuit decisions on labor and employment law, including a case he discussed in a previous episode involving the Fair Labor Standards Act.

The Fifth Circuit as a Destination Court

Strom addressed the Fifth Circuit's role in the broader legal landscape. The court was designed to cover Texas, Louisiana and Mississippi. Under the National Labor Relations Act, an employer can appeal a National Labor Relations Board (NLRB) decision to any federal circuit court in which it does business. That means a case arising in New York, California, or any other state can be steered to the Fifth Circuit if the employer chooses. Companies frequently make that choice because the Fifth Circuit reliably rules in favor of corporations and against workers and agencies. The court's decisions are technically binding only in Texas, Louisiana and Mississippi, but the practical reach is much wider when employers use it as a forum of choice for cases from anywhere in the country.

Will OSHA Appeal?

Strom said OSHA has the legal authority to appeal the Fifth Circuit ruling to the Supreme Court and should do so. He does not expect it will. The Trump administration's broader posture is to undermine federal agency authority rather than defend it. In this case, the parties are ExxonMobil and OSHA, with no individual worker as a named party. OSHA appealing the ruling would require the administration to defend a regulation requiring corporate mental health injury reporting — a position that conflicts with almost everything the administration is doing across the federal government.

The case involved a worker who experienced a hellish workplace trauma and was later diagnosed with PTSD. The resulting ruling rewrites 25 years of settled regulatory practice, and it does so in a way that makes it harder to measure the full scope of mental health injuries in American workplaces. One in five American adults experiences mental illness. Workplace stress contributes to at least 120,000 deaths and $190 billion in healthcare costs annually. If OSHA cannot require employers to report work-related mental health injuries, it cannot measure the scale of the problem it was created to address.

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