3. MY INTERPRETATION
Updated January 29, 2000

Congressional hearings on this issue were scheduled for January 26 but had to be postponed due to the winter storm in Washington. However, the Labor Department released the testimony prepared by Assistant Labor Secretary Charles Jeffress; see the links to news articles about this on the Background page.

Jeffress said in his remarks that "We believe that the Occupational Safety and Health Act does not apply to an employee's house or furnishings. OSHA will not hold employers liable for work activities in employee's home offices," according to a WASHINGTON POST article.

"OSHA does not expect employers to inspect home offices," and OSHA "does not and will not inspect home offices," his testimony states. "The bottom line is, as it has always been, that OSHA will respect the privacy of the home and expects that employers will as well."

The gist of the POST article and others is that the issue is dead, there won't be any new regulations, and employers can pretty much forget about the whole issue. I'm going out on a limb here, but I think that's a slightly incorrect conclusion, for these reasons:

1. To say that OSHA regulations do not apply to an employee's house or furnishings does not mean that an employee injury occurring at home, and arising from the job being done, is not a reportable injury. I believe this wording was carefully chosen to defuse the concerns that OSHA was going to check every staircase, every wire, and every shaky table anywhere in the home. I still don't believe that a telecommuter who is injured directly in the course of doing his/her work is not going to be a problem for OSHA and the employer.

2. I think it would be a mistake to leap from Jeffress' statement that "OSHA won't inspect homes and doesn't expect employers to do so either" to an assumption that employers are absolved of all responsibility for workplace injuries that occur in the home. As you know, the inspection issue is a ticklish one, and in the following section I offer some suggestions about the inspection issue.

3. OSHA is dealing with the Federal Occupational Safety and Health Act, which is obviously related to but NOT the same as the fifty individual state Worker's Compensation statutes. An employee who is injured will generally file a Worker's Comp claim, and the adjudication of that claim is based on the state statute and not on the OSH Act. You should seek counsel about this from your legal advisors, but I think that employers would still be liable for work-related injuries that happen in the home under Worker's Comp statutes even though OSHA seems to have washed its hands of the matter.

We'll see how this issue unfolds as the months progress and as we get closer to - and more important, beyond - the November elections.

A. First, it's not a new issue. OSHA has said all along - and well before anyone could say the word "telecommuting" - that the employer's responsibility for the workplace is broadly defined and does not end at the four walls of the office or factory. Truck drivers, construction workers, sales reps, and people climbing telephone poles, among others are all covered.

B. Second, the OSHA statement was a response to an individual employer inquiry and is not a new policy or regulation. It's not as if OSHA had been researching this serious workplace problem fraught with risks for the last three years and then decided to issue a new regulation. This is clear from the comments from Labor Secretary Alexis Herman.

C. Smart employers have always been safety-conscious when setting up telecommuting programs; if anything, this will either reinforce them for what they have done (via training, prevention and inspection), or remind them to do a bit more. I don't see a need for a flurry of new activity.

D. In practical terms, OSHA doesn't have the resources to inspect every single office or factory, let alone home offices. If anyone who thinks they are going to check on every telecommuter's spare bedroom/home office - or even a sampling of them - they are completely mistaken in my opinion.

What Secretary Herman said is that she expects there might be approximately ten home-office inspections performed a year - and only in the case of serious injury or death. And that's exactly the situation where I would WANT the OSHA inspector to make a visit. Keep in mind that, to my knowledge, there has never been (thank heaven) a serious injury or death to a telecommuter as a result of their telecommuting work - so I'm not sure where Secretary Herman came up with the estimate of ten inspections per year.

E. More generally, we know that the actual incidence of work-related injuries to telecommuters in their homes is almost non-existent. These people aren't working on drill presses or welding rigs at home, nor are they doing any kind of task that by its nature is terribly risky.

F. Having said all that, I don't want to minimize for a moment the good intent of OSHA in trying to make sure that employers take responsibility for the safety and health of their workers no matter where they may be. This is a good example of how employers should be aware of, and manage, these risks but not be immobilized by them or use them as an excuse to stop or avoid telecommuting.

G. To help you understand this issue in context, consider by comparison the case of corporate auto fleets. Companies have had fleets of cars for sales reps and other mobile workers for decades. Unfortunately, some of those mobile workers have been involved in accidents and have been injured or even killed, or injured or killed others. We don't hear any clamor for corporate America to take all those cars off the roads. We do, however, see smart employers with fleets doing things like:

• Putting all their drivers through defensive-driving courses
• Making sure that the fleet vehicles are properly maintained
• Establishing policies about the safe and appropriate use of fleet vehicles
• Telling drivers that they will be fired if they are found driving unsafely or without wearing their seat belts and so on. In other words, these employers have analyzed the risks and taken appropriate preventive steps. That is exactly what needs to be done for telecommuting.

H. Some of you have heard me say this many times but I'll say it again: every time I've had this issue of home office safety come up in a client meeting, I have asked the client to let me spend fifteen minutes walking around their offices, and I promise them I will find half a dozen workplace accidents waiting to happen. Nobody has ever accepted my offer. I have never seen an office without at least some cords and cables in walkways, teetering piles of boxes, file drawers sticking out, slippery steps, and so on. The fact that these risks exist in the corporate office doesn't mean we should not try to prevent risks in home offices - but it means that we should be realistic about the latter.

In my opinion, I don't believe that this news event will - or should - cause employers to cancel their telecommuting programs or stop any plans they have to begin them. The only employers that will be directly affected or influenced by this event will be those that were on the fence about telecommuting to begin with and were predisposed to be skeptical or resistant about it. For them, this OSHA news will be one more piece of ammunition - and perhaps the final one - against any plans to implement telecommuting. So be it - that's their loss.

As I was reminded by a friend via email, the issue of how broadly the workplace is defined is not a new one. "Compare it to the long, long, line of worker compensation cases that deal with, for example, injuries in softball games at company picnics. If the employer can be responsible for a worker's ankle busted while sliding into second base at the company picnic, why shouldn't the company provide an ergonomically correct chair and keyboard for the telecommuter?" he writes.

Not only do companies routinely cover these kinds of work/recreation injuries, but the grapevine has always carried messages about employees who injure themselves at home on the weekend - for example, hurting their back while lifting boxes - and then attribute it to a work-related cause on Monday. This is, of course, fraudulent and deceitful - but it happens, and companies generally get stuck with the bill. The point I'm trying to make is that the entire health and safety/workers compensation process is far from foolproof and ideal even in the office.

1. SUMMARY
2. BACKGROUND
3. MY INTERPRETATION
4. SUGGESTIONS FOR EMPLOYERS
5. TRAINING TIPS