Is a work-related mental health condition OSHA recordable? PTSD, the 1904.5(b)(2)(ix) gate, and the July 2026 Fifth Circuit decision

A warehouse employee witnesses a fatal forklift accident and, months later, hands HR a psychologist's letter diagnosing work-related post-traumatic stress disorder. Does that case go on the OSHA 300 Log?

For twenty-five years, the answer lived in a single unusual provision — 29 CFR 1904.5(b)(2)(ix) — that made mental illness the most employee-controlled determination in all of Part 1904. The employer had no duty to ask, no right to guess, and no obligation to record anything unless the employee voluntarily delivered a qualifying medical opinion. And on July 21, 2026, the U.S. Court of Appeals for the Fifth Circuit threw the whole framework into question: in Exxon Mobil Corp. v. OSHRC, No. 25-60108, the court held that OSHA never had statutory authority to require employers to record work-related mental illnesses at all, and vacated the rule itself.

That decision is days old as this post publishes, and its practical reach is still settling. So this post does two jobs: it walks the rule as OSHA wrote it — which is still what your recordkeeping software, your state plan, and most compliance guidance are built around — and then it walks the decision, what it changed, and the conservative course for a small employer while the dust settles.

How the mental illness rule works

Mental illness enters Part 1904 through the work-relatedness exceptions. Under 1904.5(a), an injury or illness is work-related if an event or exposure in the work environment caused or contributed to it. Then 1904.5(b)(2) lists nine situations that are not work-related even when they surface at work — the same list that handles the common cold, commuting accidents, and personal tasks. The ninth exception is mental illness, and it works differently from the other eight. The regulation's text:

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.

Read that carefully and three design choices jump out.

The employee holds the key. Every other work-relatedness call in Part 1904 is the employer's to make. This one is triggered only by the employee's voluntary act of handing over a qualifying opinion. You are under no obligation to seek out mental-health information from your workforce, and you should not: soliciting diagnoses creates legal exposure under other laws (the ADA's limits on medical inquiries, for a start) and buys you nothing under Part 1904. If no qualifying opinion ever lands on your desk, there is nothing to record — full stop.

Not every provider's opinion opens the gate. The rule requires a physician or other licensed health care professional with appropriate training and experience in mental health — the regulation's own examples are a psychiatrist, psychologist, or psychiatric nurse practitioner. That qualifier has teeth in practice. In the Exxon case that reached the Fifth Circuit, an employee submitted PTSD diagnoses from two licensed clinical social workers and from his primary-care physician, and the employer took the position that none of the three had the appropriate specialized training under the rule. It was only when a psychologist ran a full battery of assessments and diagnosed work-related PTSD that the employer conceded a qualifying opinion existed. A diagnosis note from a family-practice visit is not automatically enough.

The opinion must connect the illness to work. The professional has to state both that the employee has a mental illness and that it is work-related. A diagnosis alone, with no causal opinion, does not make the case recordable.

OSHA's preamble to the January 2001 recordkeeping rule added one more feature: the employer is not required to take the employee's provider's word as final. If you do not believe the reported mental illness is work-related, the preamble says, you "may refer the case … for a second opinion" (66 Fed. Reg. 5916, 5953, Jan. 19, 2001). In the Exxon litigation, the dueling-opinions scenario played out in full — the employee's psychologist said work-related PTSD, the employer's designated psychologist reviewed the file and said no, and the employer went with its own expert. Whether an employer may resolve that conflict in its own favor was one of the questions the case teed up; the Fifth Circuit never reached it, because it decided the rule itself was invalid.

After the gate: the ordinary recording criteria

Passing the 1904.5(b)(2)(ix) gate makes the case work-related. It does not by itself make the case recordable. From there, a mental illness case runs through exactly the same general recording criteria in 1904.7 as a laceration or a strained back:

• Medical treatment beyond first aid. Prescription medication is medical treatment, so a work-related PTSD or anxiety case managed with prescribed medication meets a recording criterion. Psychotherapy and counseling are treatment as well; note that OSHA's closed first-aid list — the sixteen items in 1904.7(b)(5)(ii), covered in first aid vs. medical treatment — is a list of physical interventions, so mental-health care that goes beyond a one-time conversation generally is not "first aid."
• Days away, restriction, or transfer. A provider keeping the employee off work, or the employer restricting duties because of the condition, triggers the same day-counting rules as any physical case, including the 180-day cap.
• Significant diagnosed condition. A significant illness diagnosed by a physician or other licensed health care professional can be recordable even without treatment or lost time.

On the 300 Log itself, a recordable mental illness is classified in column M(6), "all other illnesses" — the form has no mental-health-specific category.

And one more layer applies automatically: a recordable mental illness is a privacy concern case under 1904.29(b)(7)(iii). You enter "privacy case" instead of the employee's name on the 300 Log, keep the real name on a separate confidential list, and consider masking descriptive details in a small workplace where the facts alone would identify the person. We cover that machinery — all six privacy categories, the confidential list, and who may see what — in privacy concern cases on the 300 Log. The two provisions stack in the employee's favor by design: the employee controls whether the case exists, and if it does, the name is suppressed from the start.

What the Fifth Circuit decided in Exxon Mobil v. OSHRC

The case grew out of a December 2021 explosion at ExxonMobil's Baytown, Texas refinery. During repairs, a pipe in a hydrodesulfurization unit ruptured; the hydrocarbon release caused a major fire that burned for eight hours. A process technician — "Employee 2" in the litigation — twice entered the burning unit alongside company firefighters to help close fuel valves. Afterward, he sought counseling, and over the following months four different providers — two licensed clinical social workers, his primary-care physician, and finally a psychologist — diagnosed PTSD stemming from the fire.

Exxon accepted that the psychologist's opinion met the 1904.5(b)(2)(ix) qualification bar but referred the file to its own designated psychologist, who concluded the employee did not have work-related PTSD. Exxon declined to record the case. The union reported it, OSHA cited Exxon for an other-than-serious recordkeeping violation, and an administrative law judge affirmed the citation with a $691 penalty. Exxon petitioned the Fifth Circuit for review.

The court never resolved who was right about the diagnosis. Instead it asked a more basic question: did Congress ever give OSHA the power to require recording of mental illnesses? The recordkeeping statute, 29 U.S.C. § 657(c)(2), directs the Secretary of Labor to require records of "work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment." Applying Loper Bright — the 2024 Supreme Court decision requiring courts to find the best reading of a statute rather than deferring to a merely plausible agency reading — the panel concluded that "illnesses" in that statute, read in context and against dictionaries contemporaneous with the 1970 Act, "refers to physical, and not mental, work-related ailments and conditions."

The remedy was sweeping. The court granted Exxon's petition and vacated not just the citation and penalty but "the rule itself" — 29 CFR 1904.5(b)(2)(ix), the mental illness provision that had been on the books since the 2001 recordkeeping overhaul.

What the decision does — and doesn't — settle

A five-day-old circuit decision is a moving target, and it would be a mistake to read it as the final national word. Here is the honest state of play as of publication:

• The core holding: the federal recordkeeping statute, as this panel reads it, does not authorize OSHA to require employers to record work-related mental illnesses. Within the Fifth Circuit (Texas, Louisiana, Mississippi — all federal-OSHA states for private employers), that is now controlling law.
• The vacatur: the panel purported to vacate the rule itself, not merely to set aside one citation. The Fifth Circuit treats vacatur of an agency rule as wiping the rule off the books, which would reach beyond the three states. How OSHA, the OSHRC, and other circuits will treat that remedy is not yet established.
• What could still change: the government can seek rehearing en banc or Supreme Court review, and OSHA has not, as of this writing, issued guidance on how it will apply the decision. A future Congress could also amend the statute — the court was explicit that the fix, if there is to be one, is legislative.
• State plans are their own question. Roughly half the states run OSHA-approved state plans that enforce their own recordkeeping rules — adopted nearly verbatim from federal Part 1904 but existing under state law. A federal court's reading of the federal statute does not automatically strike a state's identical rule. If you operate in a state-plan state (California, Washington, Oregon, and many others), assume your state's mental illness recording provision remains in effect unless and until your state says otherwise. Multi-state employers should expect a patchwork; the same logic that makes each establishment subject to its own state's rules applies here.
• Everything outside Part 1904 is untouched. The decision is about one recordkeeping provision. Workers' compensation for mental injuries, ADA accommodation duties, FMLA leave, and any state workplace mental-health requirements all operate on their own rules — the same two-systems separation that has always kept comp determinations and OSHA determinations independent.

What a small employer should actually do now

The practical playbook barely changes, because the rule's employee-triggered design always meant there was nothing to do until a qualifying opinion arrived:

1. Never solicit. Do not ask employees whether work is affecting their mental health for recordkeeping purposes, and do not go hunting for diagnoses after a traumatic incident. That was true under the rule, and it remains true after it.
2. If an employee hands you a provider opinion, read it against the three requirements: a licensed professional with appropriate mental-health training, a stated diagnosis, and a stated work connection. Document what you received and when.
3. Check your jurisdiction. Federal-OSHA state? The Fifth Circuit has vacated the federal rule, and at minimum the decision is controlling in Texas, Louisiana, and Mississippi — but OSHA's nationwide response is still unwritten. State-plan state? Treat your state's rule as live and record when the criteria are met.
4. If you record, record it as a privacy case — "privacy case" in the name column, confidential list, M(6) classification, and the description-masking discretion where needed.
5. Support is separate from recordkeeping. EAP referrals, counseling after a traumatic incident, and time off are good practice regardless of what Part 1904 requires. In the Exxon case, the employer's grief counselors and EAP were how the employee got care; none of that depended on whether a log entry was ever made.
6. Date-stamp your decisions. This area of law just moved and may move again. A file note that says what rule you applied and why, on what date, is cheap insurance.

However this litigation resolves, the recordability analysis for everything else on your log is unchanged — and it still has to be run case by case, against the current text of the rules. LogStead's recordability wizard walks each incident through the work-relatedness exceptions and the 1904.7 criteria in order, flags privacy concern cases so the name never reaches the 300 Log view, and keeps the confidential name list where only the right people can see it. You can test the decision logic free with the recordability checker — no signup required.

This post is general compliance information, not legal advice — and it describes active litigation current as of July 26, 2026. Verify the status of Exxon Mobil Corp. v. OSHRC and any OSHA response before relying on it, and check your state plan's requirements, which may differ from federal law.