A recent pronouncement, subsequent retraction and later reversal by the Occupational Safety and Health Administration (OSHA) regarding the extent to which an employer is responsible for home-based worksites has caused employers to reassess whether and to what extent they must ensure that home-based employees are working in safe and healthful home offices. Ultimately, OSHA has concluded that employers have little, if any, responsibility under the Occupational Safety and Health Act (the OSH Act) for home-based office workers. While OSHA's final position has been embraced by employers and home-based employees alike, employers may still find themselves responsible for the maintenance of safe home-based worksites to minimize other liabilities, including workers. compensation claims.
Home Office Controversy
OSHA was drawn unwittingly into a firestorm of controversy when it set out to respond to a simple inquiry from CSC Credit Services. CSC advised OSHA that it was about to require its sales executives to begin telecommuting from home. The sales executives were expected to work from a single room in their homes, using a desk, chair, file cabinet, telephone, computer, printer and facsimile machine. CSC asked OSHA to provide advice as to the nature and extent of the company's responsibilities under the OSH Act with respect to these home-based sales executives.
In November 1999, two years after having received CSC's inquiry, OSHA's Directorate of Compliance Programs issued a long and detailed advisory opinion letter. In that letter, OSHA affirmed its position that the OSH Act applied to home-based workers and that employers ultimately were responsible for ensuring safe and healthful home offices:
"Employers should exercise reasonable diligence to identify in advance the possible hazards associated with particular home work assignments, and should provide the necessary protection through training, personal protective equipment, or other controls appropriate to reduce or eliminate the hazard. In some circumstances the exercise of reasonable diligence may necessitate an on-site examination of the working environment by the employer."
OSHA's pronouncement that the OSH Act applied to home-based workers was not particularly surprising in light of the breadth of the OSH Act itself and the fact that OSHA had issued similar advisory opinion letters in the past.
The unsettling part of OSHA.s advisory opinion letter was the expansiveness with which OSHA sought to apply the OSH Act to home-based workers. In particular, OSHA stated in the advisory opinion letter that an employer's obligations may extend beyond the home office to other safety hazards within an employee's house if the employer knows or reasonably should have known of the hazards. For example, OSHA opined, 'If work is performed in the basement space of a residence and the stairs leading to the space are unsafe, the employer could be liable if the employer knows or reasonably should have known of the dangerous condition.' The advisory opinion also suggested that an employer could be liable under the OSH Act if it knows that there is lead paint in an employee's home office and does nothing to ensure health hazards presented by the paint are eliminated.
Resulting Push Back
OSHA's advisory opinion letter to CSC was roundly rebuked after the letter was highlighted in a January 4, 2000 article in the Washington Post. Members of Congress decried the letter, the media lambasted OSHA, the U.S. Chamber of Commerce called OSHA's position outrageous, and the White House expressed its surprise and shock. Within days, the Department of Labor withdrew the letter without clarifying its position. OSHA conceded that while the opinion letter may have overstated the OSH Act's application, the letter nevertheless represented good advice for [CSC] and that the agency continued to believe that the OSH Act applied to home workers.
Not satisfied with OSHA's retraction of the CSC advisory opinion letter, the U.S. Senate Labor Committee.s Subcommittee on Employment, Safety, and Training scheduled hearings on Capitol Hill in late January and early February. Ultimately, on February 25, 2000, OSHA reversed course and issued a Directive on Home-Based Worksites. In that directive, OSHA issued the following policy for home offices (defined as office work activities in a home-based worksite.):
"OSHA will not conduct inspections of employees' home offices. OSHA will not hold employers liable for employees' home offices, and does not expect employers to inspect home offices of their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA's policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee."
However, the directive emphasizes that employers still must keep records of work-related injuries and illnesses, regardless of whether the injury or illness occurs in a home office.
In the directive, OSHA was quick to distinguish home offices from other home-based worksites, such as home-based manufacturing. Employers will continue to be liable for injuries or illnesses caused by materials, equipment or work processes which the employer provides or requires to be used in an employee's home.
While many employers are breathing a sigh of relief in light of OSHA's Directive on Home-Based Worksites, employers would be well-advised to consider the narrow scope of the directive. In particular, employers are likely to remain responsible for injuries arising in the home worksite through workers' compensation laws or common law negligence claims.
For example, most state workers' compensation laws provide that employers must pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment. While there are very few reported cases involving the workers. compensation claims of home-based workers, most experts agree that workers' compensation law does not distinguish between home-based and office-based workers.
Accordingly, employers continue to have a vested interest in ensuring that their home-based employees work in a safe and healthful worksite. At a minimum, employers should assist their home-based workers in ensuring that home offices are set up in an ergonomic fashion. Employers should provide training and periodic reminders to home-based workers regarding the creation and maintenance of a safe home office. Many employers require home-based workers to complete a safety check-list at least annually to reduce claims and encourage productivity.
Employers also should ensure that policies and procedures are in place to minimize fraudulent workers' compensation claims from home-based workers. When an employee is injured at home, the question arises as to whether the injury arose out of and in the course of the employment. In most situations there will be no witnesses to the injury. The employer may have a difficult time defending a claim if it believes that the accident may have occurred at another time or for a reason unrelated to the employment. Accordingly, an employer will want to reach a mutual understanding with telecommuting employees as to what specific area of the home will constitute the home office and the exact hours of the day during which the employee must work. In addition, employers should implement strict guidelines regarding the reporting of home injuries.
Finally, employers should ensure that their workers. compensation insurance coverage contemplates home-based workers, especially where those home-based workers reside in another state. The same holds true for all other insurance coverages, including personal injury, property loss, or professional liability coverage.
While a welcome development, OSHA's Directive on Home-Based Worksites certainly does not absolve employers from all liabilities involving home-based employees. Employers that assist employees in setting up and maintaining safe and healthful home worksites, require a certain level of procedure regarding the reporting of injuries, and take measures to ensure insurance coverage will be in a better position to tailor a lasting and successful home-based work program for their employees.