An issue that implicates both the FMLA and OSHA? Normally, I’d yawn and take a cat nap along with you.
But this one is sufficiently interesting: If an employee returns FMLA medical certification confirming the need for FMLA leave because of a personal injury or illness, is the employer required to record the event on its OSHA reporting forms?
No, according to the Occupational Safety and Health Review Commission, which reviews citations or penalties resulting from OSHA inspections of American work places.
Here was the recent scenario considered by the Commission: “Susie” provided her employer, the United States Postal Service (USPS), FMLA medical certification stating that she suffered from a “serious health condition…caused by her work environment exclusively.” USPS knew nothing about Susie’s illness other than what the medical certification indicated, and it did not inquire further of Susie.
Although this document arguably put USPS on notice that Susie’s illness was work-related, USPS never recorded the illness on its OSHA 300 or 301 forms as required by law. After an investigation, OSHA cited USPS for a record-keeping violation because USPS did not record the event.
USPS argued that it was required to maintain Susie’s FMLA certification in a separate system as mandated by the FMLA. As a result, USPS contended that it could and should not not disclose this information about Susie on its OSHA firms and report or Susie could go and file a claim against them. In a bit of a surprise move, the Commission agreed with USPS, finding that the confidentiality provisions of the FMLA (located at 29 C.F.R. §825.500(g)) trump OSHA rules and do not require completion of an OSHA log:
Because the provision plainly prohibits the use of FMLA documentation for non-excepted purposes, we conclude that such documentation may not be reviewed by an employer for OSHA recordkeeping purposes. Sec’y of Labor v. USPS, OSHRC, No. 08-1547 (9/29/14)(pdf)
Insights for Employers
We have grown accustomed to government agencies taking it to the employer community, so this one is a good win for employers. Simply put, the decision stands for two essential principles: if an employer receives FMLA medical certification indicating the employee’s health condition is or could be work-related, the employer does not have any obligation to: 1) record the illness or injury on its OSHA forms, or 2) inquire whether the injury or illness is related to work.