Quick Hits
- In a July 2026 opinion, the Fifth Circuit vacated OSHA’s mental-illness recording rule, and the citation and penalty issued under it, after concluding that the OSH Act did not authorize the rule.
- The court’s analysis appears to have opened the door to challenging the statutory basis underpinning OSHA’s reporting rules.
- OSHA’s reporting rule remains in effect until a court invalidates or OSHA changes it.
While the Fifth Circuit did not address OSHA’s rule requiring reports within eight hours for work-related fatalities and within twenty-four hours for work-related in-patient hospitalizations, amputations, and losses of an eye, the court’s analytical framework (starting with statutory text, requiring explicit congressional authority, and rejecting a merely plausible agency reading) may give employers a roadmap for challenging that incident-reporting regime.
To be clear, this is a developing legal theory, not a holding that 29 C.F.R. § 1904.39 is invalid. Employers must continue to comply with the existing rule. The question is whether the statute the U.S. Congress enacted authorizes immediate, event-triggered reports backed by citations and penalties, or instead authorizes recordkeeping and periodic reports.
That distinction matters most when an incident is chaotic, the cause is disputed, or the employer learns only later that the event may be work-related. The current regulation gives employers a limited amount of time once the relevant facts are known; Exxon and Loper Bright Enterprises v. Raimondo invite a court to examine whether the regulation’s particular deadlines stay within the authority Congress actually delegated.
The potential challenge begins with a simple textual contrast.
The Textual Gap: ‘Periodic Reports’ Versus Immediate Reporting
Section 8(c)(2)—codified at 29 U.S.C. § 657(c)(2)—of the Occupational Safety and Health (OSH) Act directs the secretary of labor, in cooperation with the secretary of health and human services, to prescribe regulations requiring employers to “maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than specified minor injuries.” The provision expressly addresses records and periodic reports; it does not expressly mention immediate notification of OSHA after a discrete event.
Section 1904.39(a) of OSHA’s regulations, by contrast, imposes an event-triggered duty: report a work-related fatality within eight hours, and report an in-patient hospitalization, amputation, or loss of an eye within twenty-four hours. Reports must be made by telephone, in person, or electronically.
- The developing argument is that “periodic reports” suggests recurring submissions at specified intervals, not an immediate report after each qualifying incident.
- The regulatory difference is that § 1904.39 adds a short, incident-specific clock and attaches potential citation and penalty exposure to missing it.
- The statutory question is whether Congress authorized OSHA to require this form of real-time reporting or authorized only recordkeeping and periodic reporting.
The countervailing argument would aver that “periodic” allows the agency to set reporting intervals, that § 657(g)(2) authorizes rules necessary to carry out the OSH Act, and that prompt notice advances the OSH Act’s protective purpose. There is no doubt that this is a “plausible” reading of the statute. However, after Loper Bright, a court must decide which reading is best rather than accept the agency’s reading merely because it is plausible.
The Fifth Circuit’s Decision
Exxon arose from a refinery explosion and fire in Baytown, Texas. After an employee was diagnosed with post-traumatic stress disorder connected to his emergency-response work, OSHA cited the employer for failing to record a work-related mental illness under 29 C.F.R. § 904.5(b)(2)(ix). The employer pursued review after the administrative law judge’s decision became the final Occupational Safety and Health Review Commission (OSHRC) order.
The Fifth Circuit granted the petition, vacated the rule, and set aside the citation and penalty. It concluded that the best reading of § 657(c)(2) treated “illnesses” as physical—rather than mental—work-related ailments. The court looked at statutory context to determine whether Congress intended “injuries” to include both physical and mental injuries. The court noted “injuries” and “illnesses” appear together; the minor-injury carveout refers to first aid, loss of consciousness, restriction of work or motion, and transfer; and the broader § 657(c) recordkeeping framework and § 657(a) inspection authority focus on physical workplace hazards without referencing hazards specific to mental illness exposures.
Why the Decision Matters Beyond Mental-Illness Recording
Exxon applied Loper Bright’s instruction that courts must exercise independent judgment on whether an agency acted within statutory authority. Loper Bright specifically directs courts to use relevant interpretive tools to identify the statute’s best reading, respect genuine delegations of discretion by Congress, and police the outer boundaries of those delegations, ensuring the agencies don’t exceed the authority delegated by Congress. A regulation may be sensible or plausible and still fail if Congress did not authorize it.
Loper Bright did not eliminate OSHA’s policymaking or technical expertise. It eliminated the premise that statutory ambiguity itself transfers interpretive authority to the agency. The agency’s experience may inform a court’s analysis, but it cannot replace the court’s independent judgment about what § 657 permits.
A Potential Challenge to Section 1904.39
Applied to § 1904.39, the argument would track the Fifth Circuit’s decision. Section 657(c)(2) expressly refers to records and “periodic reports.” Section 1904.39(a)(1)–(2) instead requires an employer to initiate a report within eight or twenty-four hours of a qualifying event, while § 1904.39(b)(7)–(8) starts the clock after the employer or its agent learns of the event or learns that it was work-related. A challenger could argue that OSHA crossed the line from periodic reporting into immediate incident notification, a power Congress did not expressly grant.
Employer Considerations
While the Fifth Circuit’s decision changes the conversation, it does not change the compliance rule today. Section 1904.39 is enforceable unless and until OSHA amends it or a court with authority invalidates the relevant requirement. The safer operational approach is to report within the prescribed window while preserving any legal challenge in an appropriate case.
- Quick escalation. When a fatality, in-patient hospitalization, amputation, or loss of an eye may be reportable, employers may want to promptly involve the personnel responsible for OSHA notifications and use one of the permitted reporting methods.
- Tracking knowledge timing. Employers may want to maintain a contemporaneous record of when they or their agent received information about the event and about work-relatedness; that timing can matter under § 1904.39(b)(7)–(8).
- Separating occurrence from work-relatedness. Consider analyzing whether an event or exposure in the work environment caused or contributed to the condition or significantly aggravated a pre-existing condition under § 1904.5(a). The occurrence date does not always start the reporting clock if reportability was learned later.
- Preserving the issue. If OSHA issues a citation, consider contesting it within fifteen working days, developing the factual record, and raising the statutory-authority argument when the facts and procedural posture warrant it.
Bottom Line: A Roadmap, Not a Safe Harbor
The Fifth Circuit’s decision is significant because it demonstrates that an OSHA rule can be vacated when its statutory foundation does not support the agency’s best reading of the law. Loper Bright supplies the review framework, and the text of § 657(c)(2) supplies a potential point of attack against § 1904.39’s immediate deadlines.
But the question remains open. The Fifth Circuit vacated the mental-illness recording rule; it did not decide § 1904.39. Until another court addresses the reporting provisions, employers are still required to comply. Employers may want to preserve the statutory argument where the facts and posture warrant it, and treat work-relatedness and knowledge timing as issues requiring disciplined, contemporaneous analysis.
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the State Developments and Workplace Safety and Health blogs as additional information becomes available.
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