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  OSHA examines and defines telework guidance.
  
  

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OSHA Telework Guidance Creates Unexpected Furor

The U.S. Department of Labor's Occupational Safety & Health Administration (OSHA) sent a five page letter November 15, 1999 to an employer answering the employer's questions about its responsibilities to employees who telecommute. Like the cartoon character who struck a match in a dark room so he could get some light ... only to discover that the room was full of dynamite, OSHA unwittingly sparked a fire storm of criticism with its letter.

OSHA's letter to the employer was meant to serve as a response to the specific questions raised by that employer. OSHA displayed the letter on its Web site, however, making it publicly available. The letter was quickly noticed by The Washington Post, which ran a series of articles on the ramifications of the document.

The letter, thanks to the media attention it attracted, suddenly became official guidance in the eyes of many. That guidance, were it to be applied broadly, would render employers responsible for things like handrails for stairs, ventilation, lighting, and the like, in the homes of their employees who telework.

The Washington Post ran its first story on the letter January 4, 2000. The resulting outcry was such that Secretary of Labor Alexis Herman issued a statement January 5 announcing that, "While this employer has received the guidance he needs, the letter has caused widespread confusion and unintended consequences for others. Therefore, OSHA is withdrawing the letter today." The episode quickly became very political. In addition to the string of 'Post articles that appeared throughout January, the letter gave rise to no fewer than three bills in Congress. The bills would amend the Occupational Safety and Health Act of 1970. Rep. Tom Davis (R-VA) introduced HR 3518, Rep. Clay Shaw (R-FL) introduced HR 3530, and Rep. JD Hayworth (R-AZ) introduced HR 3539.

All three bills would provide that the Occupational Safety and Health Act of 1970 will not apply to employment performed in a workplace located in the employee's residence. Davis's bill, HR 3518, for example, would specifically provide that the Act will not apply to employment performed in a home workplace through the use of a telephone, computer or other electronic device. Rep. Frank Wolf (R-VA), who has been a strong proponent of telecommuting, signed on as a cosponsor to Davis's HR 3518.

Rep. Pete Hoekstra (R-MI), who chairs the Subcommittee on Oversight and Investigations of the House Education and the Workforce Committee, held a hearing on January 25 to clarify OSHA's policy. Charles Jeffress, Assistant Secretary of Labor for Occupational Safety and Health, explained the agency's position in his hearing testimony. "There is no provision in the law that excludes workplaces that are located in a home," Jeffress told the Conunittee. "However, as I will explain, OSHA holds employers responsible only for work activities in home workplaces other than home offices, for example, where hazardous materials, equipment, or work processes are provided or required to be used in an employee's home."

"OSHA's November 15, 1999, letter led to some confusion about the issue of safety and health issues relating to work performed at home," Jeffress acknowledged. "To correct that, and to provide certainty to employers about our policy, we are taking this opportunity to clearly state our enforcement policy in a way that more accurately reflects our longstanding practice, as follows:

1. We believe the OSH Act does not apply to an employee's house or furnishings;
2. OSHA will not hold employers liable for work activities in employees' home offices;
3. OSHA does not expect employers to inspect home offices;
4. OSHA does not, and will not, inspect home offices;
5. Approximately 20 percent of employers, because of their size or industry classification, are required by the OSH Act, to keep records of work-related injuries and illnesses. These employers continue to be responsible for keeping such records, regardless of whether the injuries occur in the factory, on the road, in a home office, or elsewhere, as long as they are work-related.
6. Where work other than office work is performed at home, such as manufacturing operations, employers are responsible for hazardous materials, equipment, or work processes which they provide or require to be used in an employee's home;
7. OSHA will only conduct inspections of hazardous home workplaces, such as home manufacturing, when OSHA receives a complaint or referral."

Jeffress's clarification put to rest the immediate concern that OSHA would make employers responsible for their employees' home office environment in telecommuting arrangements. Some legislators, however, continue to press for a change in the law. Rep. Davis was quoted in The Washington Times saying, "I think you need legislation as a reminder to the Labor Department that Congress never intended to let OSHA or the Labor Department go into people's homes."

What comes next? No one knows for sure, but Secretary Herman did say in her January 5 statement that, "Family-friendly, flexible and fair work arrangements, including telecommuting, can benefit individual employees and their families, employers and society as a whole. ...I will ask the National Economic Council to convene an interagency working group, including the Department of Commerce, the Small Business Administration and others, to examine the broad social and economic effects of telecommuting."

For more information on OSHA's policy, visit the agency's web site at: http://www.osha.gov

Details about pending legislation are available at: http://thomas.loc.gov