In 1970, Congress passed the Occupational Safety and Health Act (OSH Act) in an effort to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions.”  That Act created the Occupational Safety and Health Administration (OSHA), which was charged with gathering information and setting health and safety standards for businesses.  Maybe when you think of workplace health and safety issues you think about risks from heavy equipment, but one major workplace health hazard is stress.  One study found that workplace stress contributes to at least 120,000 deaths each year and up to $190 billion in health costs.  In addition, many workers are exposed to traumatic events at work, and some of those suffer from post-traumatic stress disorder (PTSD).  But somehow, three Republican appointees on the Fifth Circuit recently decided in Exxon Mobil Corporation v. Occupational Safety and Health Review Commission that OSHA lacks authority to gather data about workplace mental illnesses.

When Congress passed the OSH Act, it authorized OSHA to “prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses….”  Initially, OSHA’s regulations did not treat mental illness differently from other illnesses, but on the final day of the Clinton Administration, OSHA promulgated a new rule in recognition of the fact that it is often harder to tell whether a mental illness is work-related than it is for a physical illness.  This rule, which has now been in effect for twenty-five years, provides that “mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from … a licensed health care professional with appropriate training and experience” stating that the illness is work-related.

In 2022, OSHA issued a citation to Exxon Mobil for failing to record an employee’s PTSD diagnosis as a work-related illness.  The employee in question had helped firefighters respond to an explosion and the ensuing fire at a petroleum refinery.  The court described the worker’s experience as “hellish,” and a “harrowing ordeal.”  The fire burned for eight hours and it took Exxon five months to repair the resulting damage.  Exxon challenged the citation on the grounds that neither the employee’s primary care provider nor a licensed clinical social worker who evaluated the employee had the “appropriate training and experience” to make the PTSD diagnosis.

Rather than addressing the argument that Exxon raised before the agency, Judge Cory Wilson, a Trump appointee, writing for two other Republican appointees, ruled that OSHA lacks the authority to require employers to report any mental illnesses.  Wilson started with the observation that Congress did not define the term “illnesses” in the OSH Act.  The legislative history indicated that Congress was concerned about mental as well as physical illness, but the Court dismissed that history on the grounds that “legislative history is not law.”  The decision largely rested on dictionary definitions of “illness” from around 1970.  The Court’s summary of four dictionary definitions was that “none of these definitions expressly contemplate non-physical conditions.”  Yet, it’s equally true that none of the definitions ruled out including mental illnesses as illness.  For instance, at the time Black’s Law Dictionary defined illness as “a disease or ailment of such a character as to affect the general soundness and healthfulness of the system seriously, and not a mere temporary indisposition.”  The Fifth Circuit’s approach to this question is essentially the argument that the Supreme Court rejected in Bostock v. Clayton County.  In that case, the respondent employer argued that when Congress enacted the prohibition against sex discrimination in 1964 it wouldn’t have expected it to apply to discrimination against LGBTQ individuals.  Citing a book on statutory interpretation co-authored by Antonin Scalia, the Court explained that “unexpected applications of broad language reflect only Congress’s presumed point to produce general coverage.”

When Congress authorized OSHA to require reporting of work-related illnesses, it must have anticipated that knowledge about work-related illnesses would continue to evolve.  By 1970, the risk of black lung disease for coal miners was widely known, but many people who were alive in 1970 could remember a time before the connection between lung disease and working in coal mines was understood.  At that time, Congress may not have been aware of PTSD, but it also was not aware of AIDS, and other physical illnesses that pose serious risks to workers in the absence of proper precautions.  When Congress legislates, it knows that laws will be applied to circumstances it did not anticipate.

The Fifth Circuit’s Exxon decision is part of the fall-out of the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo.  Before Loper Bright, the Fifth Circuit would likely have deferred to OSHA’s interpretation of the scope of its authority to decide which illnesses employers need to report.  But Loper Bright invited judges to substitute their own judgment for the judgment of agency personnel with actual knowledge of the relevant field.  This case also illustrates the shortcomings of textualism, where a judge asserts that if he looks at the words long and hard enough he can resolve any ambiguity without any resources other than an old dictionary.  It’s worth recalling that the OSHA regulation at issue in this case has been on the books for twenty-five years and for half that time we’ve had Republican Presidents.  Moreover, if Congress thought OSHA was overreaching, it could have amended the OSH Act at any time during that quarter century.  But, this is the world we are living in now – a three judge panel of right-wing ideologues can set aside long-held understandings of what a statute means simply because they think their reading of a statute is “best.”