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FMLA Confidentiality Provisions Supersede OSHA Recordkeeping Requirements

The federal Occupational Safety and Health Review Commission recently issued an important ruling for employers who have to deal with conflicting reporting and confidentiality requirements under the Occupational Safety and Health Act (“OSHA”) and the Family Medical Leave Act (“FMLA”) of 1993, 29 U.S.C. §§ 2601-2654. In Secretary of Labor v. United States Postal Service, OSHRC No. 08-1547 (09/29/14), the Commission held that the FMLA’s confidentiality provisions supersede OSHA’s recordkeeping requirements.

An employee in the USPS distribution center in Seattle, Washington, submitted an application for leave under FMLA after she learned she was allergic to the dust generated at the facility where she worked sorting mail. The application included a statement from her doctor that she had “a serious health condition…caused by her work environment exclusively.” The postal service did not record the illness as work-related on its OSHA 300 log or 301 form pursuant to 29 C.F.R. Part 1904. The employee filed a complaint with OSHA. After an investigation, OSHA issued a citation for failure to record the illness, claiming that the USPS had knowledge that the employee’s condition was work-related.

The USPS contested the citation, arguing that a FMLA regulation, 29 C.F.R. § 825.500(g), required the postal service to maintain the information confidential; that the knowledge of the employee’s FMLA coordinator about the nature of the employee’s illness could not be imputed to the USPS; and that the employee’s supervisor had no independent knowledge of the illness. After a hearing, an Administrative Law Judge upheld the citation, including the $500.00 proposed penalty, and the USPS appealed. The Commission agreed with the employer on all points and reversed the decision.

This is an important and welcomed decision for employers and human resource managers, who routinely have to navigate a minefield of conflicting and confusing regulations. The upshot is that, if an employer receives information in connection with an application for leave under FMLA indicating that the employee’s condition may be work-related, the employer does not have to record the injury or illness on its OSHA logs and reports. Although this decision was federal, Kentucky’s Occupational Safety and Health Review Commission will likely follow it as precedent.

Kembra Sexton Taylor

Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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