A federal appeals court in Texas ruled earlier this week that OSHA can’t require companies to document work-related mental illnesses, a significant new limitation on the flagship federal workplace-safety statute.
“However commendable OSHA’s desire to improve mental health in the workplace, like all agencies, OSHA’s authority to regulate toward that end is constrained by the limits of power Congress delegated to the agency,” Judge Cory Wilson concluded in a case involving a Exxon Mobil employee who developed PTSD after a 2021 fire at a Houston-area refinery.
“OSHA’s reading of [the statute] to encompass the power to regulate workplace mental illnesses may be plausible,” he continued. “But the best reading of the statute is narrower: that ‘illnesses,’ as used there, refers to physical, and not mental, work-related ailments and conditions.”
This pseudo-Cartesian view of the mind-body question is unusual, to say the least. Modern medicine no longer views physical and mental illnesses as completely different phenomena, and there is no persuasive evidence that Congress meant to adopt this division either. Exxon Mobil v. OSHA is a testament to how powerful companies and conservative judges can work together to drain laws enacted by elected representatives of their potency and protection.
The case springs from the company’s treatment of an unnamed worker whom the court calls Employee 2. (Since he is not a party to the case, his name was kept redacted for privacy reasons.) The employee was a longtime technician at Exxon’s Baytown refinery, which is located just outside Houston to the east. One portion of the refinery is dedicated to extracting sulfur from naphtha—a high-octane fuel precursor—using hydrogen.
Employee 2 was working nearby when disaster struck on December 3, 2021: A pipe ruptured during repairs and ignited a massive fire at the facility, sending flames as high as 150 feet into the air, according to court records. He rushed to the afflicted part of the refinery and made contact with firefighters on the scene, who were struggling to close key valves to prevent the fire from spreading. Though he was not trained as a firefighter, Employee 2 still offered to assist them in locating the valves inside the burning building. The firefighters provided him with an extra set of their own gear and he followed them into a hellish inferno.
“The unit was dark because the power was ‘knocked out,’ and flames were ‘streaking across the alleyway,’” an OSHA administrative judge later recounted, citing testimony. “They reached the P609 hydrogen outlet valve, which was open and feeding the fire. Employee 2 pointed to the valve because the fire ‘was hot and roaring’ and ‘too loud’ to hear one another. As the firefighters were almost done closing the valve, ‘the flames … started woofing on us’ and the firefighters stopped. Employee 2 feared the flame would go out and the vapor cloud around them would reignite, but they continued and finally closed it.”
Rushing into a burning building was not part of Employee 2’s job description, to say the least. But he performed this task not once but twice at the behest of firefighters on the scene. According to OSHA’s account of the incident, Employee 2 reentered the burning facility to help emergency personnel close additional bypass valves. In between his entrances, Employee 2 was treated by EMTs for an (understandably) high blood pressure level and elevated heart rate.
Afterwards, Employee 2 “met with ExxonMobil grief counselors to discuss his coping and anxiety,” according to the OSHA ruling. He also used their employee assistance program to contact a licensed therapist in the area, who initially diagnosed him with adjustment disorder with anxiety as well as PTSD when his initial symptoms did not subsist. Employee 2, the therapist told Exxon, “could not control his emotions, was depressed and fearful, and had anxiety, hypervigilance, and nightmares stemming from the incident.”
In addition to that therapist, Employee 2 also sought treatment and assistance from his primary care doctor and an additional therapist who specialized in trauma-related disorders. Both medical professionals corroborated the first therapist’s diagnosis of PTSD. They also helped him apply for FMLA and disability leave, from which he ultimately returned to work in October 2022.
One might expect the managerial caste at Exxon Mobil to be grateful that one of their own employees risked his life to help save not only the lives of his co-workers but also tens of millions of dollars of Exxon property. (The refinery reopened less than six months later.) Instead, they fought tooth and nail to resist Employee 2’s diagnosis by questioning the credentials of the therapists and physicians that he met.
Why? Exxon, like every other major business in the United States, is required to document workplace illnesses and injuries. The Occupational Health and Safety Act allows OSHA to require employers to “maintain accurate records of […] work-related deaths, injuries, and illnesses,” with the exception of “minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.”
Failure to comply with these rules can result in a small monetary penalty. A company’s workplace injury log can also affect other aspects of their business: A higher injury rate could lead to higher insurance premiums, for example. Exxon had a strong interest in ensuring that Employee 2’s injury would not be recorded in their logs.
To that end, they insisted that he see a different specialist in work-related trauma. Employee 2 again checked the company’s own employee assistance program and found a new specialist who spent multiple appointments examining him. Her first clinical interview included an extensive patient history about virtually every aspect of Employee 2’s life. During the second appointment, she “conducted personality tests, IQ tests, and asked approximately 700 questions about his symptoms and feelings.”
After all of this, her conclusion was the same: Employee 2 met the clinical standard for a PTSD diagnosis. This time, Exxon agreed that the specialist was qualified, but nonetheless sought a second opinion as permitted under OSHA regulations. They located a new psychologist and sent her Employee 2’s medical records, summaries of his past clinical visits, and information about the incident. “Typically, the employee is also interviewed by the third-party specialist as part of the 233 process but, as noted above, Employee 2 declined to make himself available,” the OSHA decision noted.
One can hardly blame Employee 2 for refusing to obtain what would be, by my count, a fifth diagnosis of PTSD. This did not deter the Exxon-obtained psychologist from rendering her own opinion. Employee 2 did not, in her view, experience a “traumatic event,” but rather a routine workplace occurrence. She also concluded that there was “no evidence” that Employee 2 has PTSD “based upon the DSM-5 criteria.”
Employee 2’s union alerted OSHA to the company’s decision to not record his work-related PTSD diagnosis, prompting an investigation. The agency eventually cited Exxon for the recordkeeping violation, which then prompted the company to appeal to OSHA’s internal review commission. An OSHA administrative judge again ruled against Exxon. From there, the company took its case to the Fifth Circuit.
In federal court, Exxon argued that mental illnesses were simply not covered by the OSHA recordkeeping provision in question. Again, the Occupational Safety and Health Act requires companies to log “work-related deaths, injuries, and illnesses,” with no exception for mental illnesses. OSHA has long interpreted that language to mean both physical and mental illnesses. Until 2024, courts would have been generally required to defer to the agency’s understanding of its own authorizing statute.
Since the Supreme Court overturned the Chevron doctrine two years ago, however, lower courts are no longer required to even consider the agency’s interpretation. This allowed the Fifth Circuit to engage in a bit of legalistic sleight of hand. Judge Wilson argued that two related provisions suggested that the statute meant “physical illnesses or injuries,” even though it does not actually say that.
“OSHA fails to explain how [the statute]’s carveout of ‘minor injuries requiring only first aid’ squares with its assertion that ‘injuries and illnesses’ encompass both physical and mental conditions,” Wilson wrote. “Likewise, OSHA does not explain how mental illnesses fit with the ‘injuries’ excepted from the Act’s reporting requirements because mental conditions do not implicate ‘restriction of work or motion’ or ‘loss of consciousness.’”
One could reasonably argue that all mental illnesses are, in fact, physical illnesses since the brain is a physical organ of the human body. For brevity’s sake, we’ll skip the philosophical implications of drawing that line. The “minor injury” exception was clearly not meant to cabin “injuries and illnesses,” but rather to spare businesses from going through a mountain of paperwork whenever a worker stubs their toe.
The notion that “restriction of work or motion” and “loss of consciousness” necessarily exclude mental illnesses elsewhere in the law is also dubious at best. Employee 2’s symptoms included anxiety, depression, and a loss of emotional control. Anyone who has struggled with these illnesses can testify to how debilitating they can be. (A member of Congress recently underwent four months of in-patient hospital treatment for depression, for example.) Loss of consciousness is also, by its nature, a mental condition since it affects a person’s cognitive abilities. To argue that loss of consciousness is a strictly physical act is to reverse the mind-body distinction upon which Exxon and the Fifth Circuit otherwise rely.
OSHA pointed to ample contemporary evidence that Congress intended to sweep broadly with its terminology instead of implying a more restrictive view, as the company and the court favored. But the Fifth Circuit dismissed with this evidence by arguing that the “legislative history,” which conservative judges typically disfavor, was not directly applicable here.
This is an obvious boon for Exxon and other major companies in the Fifth Circuit’s jurisdiction. They will no longer be required to record work-related mental illnesses, which will lower their overall injury rates and could make their workplaces appear safer—perhaps much safer—than they actually are. It may also disincentivize them from taking additional precautions to protect their workers in the future.
Exxon itself is also effectively rewarded for downplaying and denying the PTSD diagnosis of one of its workers. It is often said that no good deed goes unpunished. In this particular case, Employee 2’s heroic efforts to save lives and property five years ago have allowed one company and one court to make things worse for millions of other workers.
