Is It Recordable? Diagnosed Mental Illness

Under OSHA's injury and illness reporting requirements, employers are not required to record mental illness as work-related unless the employee voluntarily provides the company with an opinion from a medical professional with “appropriate training and experience” stating that the employee has a mental illness that is work-related (29 CFR 1904.5(b)(2)(ix)).

Recently, an employer cited by OSHA for alleged injury and illness recordkeeping violations challenged those citations and asked a Federal appeals court “to narrowly define which medical professionals can diagnose mental-health illnesses.” The employer received a citation for declining to record mental illnesses cases reported by three employees following an explosion at the facility.

Each employee presented the employer with a diagnosis of a work-related mental health issue. The employer believed, however, that the persons who provided those diagnoses lacked the qualifications required by 29 CFR 1904. Therefore, the employer did not record these three cases as work related. 

An administrative law judge sided with the employer in part, vacating two of the three citations. For one case, the judge determined the diagnosing medical professional not qualified to make the diagnosis. In the second case, the judge ruled that the diagnoses was not work-related. The third citation was upheld because the company “didn’t provide any counter as to why the illness wasn’t work-related,” per the judge.

OSHA and Work-related Mental Illness 

The OSHA recordkeeping regulation at 29 CFR 1904.5(b)(2)(ix) reads: 

You are not required to record injuries and illnesses if... The illness is a mental illness. Mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related.

29 CFR 1904.5(b)(2)(ix)

Because the word “appropriate” (meaning “especially suitable or compatible”) appears in the regulation above, the Court assessed whether each diagnosing provider had training that was “especially suitable" and “compatible” with that of professionals listed in the regulation (e.g., psychiatrists, psychologists, psychiatric nurse practitioners).

While the Court vacated two of the three citations, the judge ultimately rejected the employer's request to more clearly define the criteria for diagnosing mental health cases. The court based its decision in part on the statement that “it is well established that…a standard must be construed so as to avoid an absurd result.” The Judge argued that it would be "absurd" to exclude a diagnosis from a medical professional whose profession is not listed but who nonetheless has the requisite training and experience to make the diagnosis in question. 
 

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Tags: osha, OSHA compliance