OSHA Recordkeeping Requirements Trumped by FMLA Confidentiality Provisions

Author: Ashley Shaw, XpertHR Legal Editor

October 30, 2014

The Occupational Safety and Health Review Commission (OSHRC) has ruled that the confidentiality provisions of the Family Medical Leave Act (FMLA) supersede an employer's duty to record injuries and illnesses as required by the Occupational Safety and Health Administration (OSHA) in Secretary of Labor v. United States Postal Service.

In applying the OSHRC ruling, if an employer receives information in an FMLA leave application stating that a condition is work-related, but does not have any independent knowledge of the information, then the employer does not have to record this information on its OSHA logs and reports.

A United States Postal Service (USPS) employee requested FMLA leave after she found out she was allergic to the dust that was created by the facility in which she worked. In her application for leave, the employee included a statement from her physician relaying that the employee's serious condition was caused exclusively by her work environment. This statement was not recorded on OSHA 300 or 301 forms, as is required by OSHA rules.

The employee filed a complaint with OSHA. OSHA investigated and cited the employer for failure to record based on the fact that the USPS knew the employee's condition was work-related. However, the USPS contested the citation, claiming that, because the FMLA required this information to remain confidential and solely in the possession of the employee's FMLA coordinator, it could not be considered to "know" the condition was work-related. Because the employee's supervisor had no independent knowledge of this information, it should not have been recorded.

The OSHRC reversed an earlier decision by an Administrative Law Judge that had upheld OSHA's citation and penalty, instead agreeing with the employer on all points.