The other day, I tripped and sprained my ankle as I was walking down the steep concrete steps near the storage space behind our townhouse in New York City. As it happens, I was carrying two duffel bags that my father had been keeping there. But suppose I'd been fetching a box of paper for my home office.
Would my injury be work-related? Could my Los Angeles-based employer be held responsible for failing to prevent it? Should it have installed a banister, or painted the steps yellow, or instructed me to keep my office supplies somewhere else?
I don't know the answers to these questions, and neither does my employer. That sort of uncertainty, which is bound to have a chilling effect on flexible work arrangements, is one of the main problems with the Occupational Safety and Health Administration's bid to regulate home workplaces.
Contrary to the impression you may have gotten from newspaper and TV reports, OSHA has not given up this ambitious project, despite the strong criticism it has generated from telecommuters, business groups, and members of Congress. Indeed, it's not clear that the agency has retreated a single inch from its assertion of authority over the homes of the 20 million or so Americans who work in the same places they eat and sleep.
In its November 15 letter to CSC Credit Services of Houston–a document that received wide publicity after The Washington Post reported on it earlier this month–OSHA said the Occupational Safety and Health Act "applies to work performed by any employee in any workplace in the United States, including a workplace located in the employee's home." Consequently, employers must "ensure that employees are not exposed to reasonably foreseeable hazards created by their at-home employment."
The "possible hazards" cited by OSHA, which "employers should exercise reasonable diligence to identify" and correct, include electrical circuits overloaded by office equipment, rickety stairs leading to basement offices, and "ergonomic hazards" such as inadequate or improperly adjusted office furniture. Compliance consultants warn of various other hazards, including stray toys, loose rugs, and sleeping cats.
"The employer is responsible for correcting hazards of which it is aware, or should be aware," OSHA informed CSC, which was planning to put sales executives in home offices. "One obvious and effective means of ensuring employee safety would be periodic safety checks of employee working spaces."
Privacy concerns aside, how "reasonable" is it to expect an employer–especially one that, like mine, has personnel scattered across the country–to periodically inspect employees' homes? How "reasonable" is it to expect the company to know about "possible hazards" without conducting such inspections?
Even with inspections, making sure that an employee's home workplace remains "safe" is a daunting task. The New Jersey-based consultant Gil Gordon reports that "some of my clients' legal departments have taken the position that if the employer makes a home-office visit and 'certifies' it to be safe, and then if the telecommuter is injured there the next day or whenever, the employer may be more liable than if no inspection had been done at all."
Given the threat of fines and lawsuits, coupled with the difficulty of guessing what OSHA means by phrases such as "reasonably foreseeable" and "reasonable diligence," it's not surprising that many companies put their telecommuting plans on hold when they heard about the agency's letter. Or that critics saw OSHA regulation as a barrier to increasingly popular work-at-home arrangements.
Secretary of Labor Alexis Herman responded to the objections by "withdrawing" OSHA's letter, but her reassurances ring hollow. "It was a letter to one employer," she said. "It [was] not intended to have general application…for all employers today."
Yet there is no reason to think that the responsibilities outlined by OSHA for CSC would not apply to other employers. The agency phrased these duties in general terms, and it posted the letter on its Web site under the heading "OSHA policies concerning employees working at home."
OSHA officials have insisted that the letter did not break new ground, that it was simply a statement of existing policy–and apparently one that was carefully thought out, since it took two years to prepare. Herman has not said the letter was wrong in any way, only that it fostered "confusion and unintended consequences."
That's hardly a repudiation. The same could probably be said of just about everything OSHA does.