The confidentiality requirements of the Family and Medical Leave Act (FMLA) take precedence over OSHA requirements that employers account for work-related injuries and illnesses on agency-mandated recording and reporting forms, the Occupational Safety and Health Review Commission (OSHRC) has ruled.

OSHRC’s decision vacated a ruling by the Commission’s late-chief administrative law judge, who held that the United States Postal Service (USPS) violated two OSHA recordkeeping regulations, 29 CFR §1904.29(b)(2) and (b)(3), by failing to record in a timely manner on its OSHA log (Form 300) a work-related dust allergy incurred by an employee while operating mail sorting machines at USPS’s mail processing center in Seattle and failing to complete an Incident Report (Form 301) for the same occurrence. The employee had requested leave for her illness under FMLA and had completed the required FMLA documentation to support her leave request. USPS argued that the confidentiality provision of the FMLA regulations, 29 C.F.R. § 825.500(g), required USPS to maintain the employee’s FMLA documentation in a separate system of confidential records and precluded USPS from recording the information about her illness on OSHA forms.

The FMLA provision states, in relevant part, that records relating to medical histories of employees created for purposes of FMLA are to be “maintained as confidential medical records in separate files/records.”

OSHA argued that the FMLA provision implicitly permits review and disclosure of FMLA information for OSHA recordkeeping purposes. The agency contended that the phrase “maintained as confidential medical records” is not an absolute requirement, but rather allows disclosure for certain governmental purposes. OSHRC rejected this argument, finding the provision’s language unambiguous.

OSHA also pointed to one of three exceptions to the confidentiality provision. The exception states that “[g]overnment officials investigating compliance with  FMLA (or other pertinent law) shall be provided relevant information upon request.” OSHA contended that the Occupational Safety and Health Act and the agency’s recordkeeping regulations constituted “other pertinent law.” OSHRC countered that the exception’s plain language permits disclosure to only “government officials.” Here, if the FMLA-protected information were to be disclosed, it would go beyond government officials. . “Therefore, this exception, like the rest of the provision, is unambiguous — it does not permit the disclosure of FMLA medical information for purposes of OSHA  recordkeeping,” the panel concluded.

OSHA’s burden in proving a violation includes establishing that the employer knew or, through the exercise of reasonable diligence, could have known of the violation. The chief ALJ determined that OSHA had met this burden, but the panel disagreed, in significant part, because the FMLA provision prevented USPS from reviewing the employee’s leave request records for OSHA recordkeeping compliance purposes.

OSHA had cited USPS twice for the same alleged Part 1904 violations because the regulatory agency had determined two employees were involved, and had proposed a total fine of $5,000. Since OSHRC’s decision to vacate the ALJ’s decision pertained to just one of the two employees, the judges cut USPS’s fine to $2,500.