That's the upshot of a directive issued recently by the Occupational Safety and Health Administration (OSHA), which warned that companies would be held responsible for ensuring that the homes of telecommuters meet all federal health and safety standards. Indeed, "ensuring safe and healthful working conditions … should be a precondition for any home-based work assignments."
True, Labor Secretary Alexis Herman later withdrew the directive amid a storm of protest from telecommuting workers and their employers. But Herman has refused to answer any questions regarding an employer's liability for safety and health violations at home worksites and has yet to offer any assurances that OSHA's directive will not be reinstated in the future. This cloud of uncertainty leaves workers and companies in the worst of all possible worlds -- legal limbo.
Interpretations vary. Many employers think OSHA rules don't cover telecommuters, while others consider themselves liable for some degree of home-workplace safety. As Herman herself admits, "the rules are not so clear." Until they are, few employers will be willing to run the potentially ruinous financial risks that may accompany telecommuting. At best, this policy debacle will likely cause companies to halt plans to expand their telecommuting workforce and perhaps even consider recalling workers already working from home.
Although OSHA says it will not routinely inspect homes, its regulations still require employers to take steps to protect workers, including periodic safety checks of employee working spaces. Since the 1970 Occupational Safety and Health (OSH) Act appears to cover anyone who works with a computer at home -- and since federal regulations don't define what a "workplace" is -- many important questions remain unanswered.
For example, does the OSH Act require employers to make sure workers are not exposed to known hazards created by their at-home employment? Does OSHA's proposed "ergonomics" rule, which would cover "repetitive-stress" injuries, apply to telecommuters? Who pays for remodeling homes that do not meet OSHA standards? Are employers required to conduct home inspections to reduce or eliminate any work-related safety or health problems? Don't ask Secretary Herman.
There's more. If a company incurs expenses in bringing a worker's home up to standards, does it then have a property interest in the home if the employee wants to sell it and move? What changes in the tax law would this portend? If someone is injured in a home office, is the employer liable despite the fact the company has no legal right to control the property? If a worker chooses to set up a home office in an unfinished basement, is the employer obligated to renovate that basement?
Far from putting these concerns to rest, Herman exacerbated them by calling for a national dialogue to determine what "rules of the road" will govern the evolving face of American labor. "The nature of work is changing," she said. "We need to determine what that is." Her call for an "interagency taskforce" to review telecommuting issues will hardly reassure employers who fear this could open the door to explicit regulation of home offices.
This is what happens when a bureaucracy tries to reconcile a 30-year-old law with a 21st century workforce. The only way OSHA can keep from muddying the legal waters any further is by issuing a new directive that explicitly exempts telecommuters from federal workplace safety requirements. And if OSHA refuses to rectify this departure from rational policymaking, Congress should consider updating the OSH Act to protect private homes and telecommuting from government intrusion.
"We really need to know more about this subject," Herman said. Agreed. But such remedial education should take place before OSHA issues misguided policy directives, which might even prevent a few of them.
D. Mark Wilson is a former labor economist at The Heritage Foundation, a Washington-based public policy research institute.
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