OSHA Could Spell Trouble for Working Moms

by Sean Tuffnell

The first month of Y2K began with a major uproar over an opinion printed in the papers, and I'm not talking about the John Rocker interview. The opinion in question was from the Occupational Safety and Health Administration (OSHA), which suggested that companies' normal workplace safety obligations should also apply to employees who do work at home.

The opinion was contained in a letter to a single employer in Texas who had asked for some clarification of the incredibly vague language contained in the Occupational Safety and Health Act (OSH Act). That company's question was a very legitimate one: "What are my legal liabilities if I let employees work from a home office?"

OSHA's answer caused a national uproar forcing Labor Secretary Alexis Herman to withdraw the letter. In most of the public's mind, this ended the controversy. However, even though Secretary Herman has withdrawn the interpretation letter, the Department of Labor's policy position has not changed. The withdrawal action does not end the controversy; in fact, it may have just made it worse.

This recent policy and public relations blunder has left employers in the worst of all possible worlds - legal uncertainty. Despite withdrawing the compliance interpretation letter, Secretary Herman has refused to answer questions regarding an employer's liability for safety and health violations at home work sites. She also didn't offer any assurances that such a policy wouldn't be reissued in the future. This cloud of uncertainty places the millions of employees who work at home, as well as their employers, in legal limbo. It also is likely to inhibit the expansion of telecommuting opportunities for millions of parents struggling to meet the demands of family and work.

Many people now mistakenly think that OSHA rules do not cover telecommuters, yet the 1970 OSH Act makes employers responsible for making sure that workers have safe and healthy workplaces. But it does not define what a workplace is. Thus, the OSH Act appears to cover anyone who works from home and is exposed to well-known hazards. These could include OSHA's latest enemy; ergonomic hazards such as those related to an employee's chair, desk, keyboard, and mouse. Other hazards could include bad lighting and poor ventilation.

Even though Herman asserts that the government will not routinely inspect homes, its regulations require employers to pursue all feasible steps, including periodic safety checks of employee working spaces, to protect workers. If the home is legally interpreted as a qualifying workplace, the OSH Act would seem to require employers to make sure that workers are not exposed to known hazards there as well.

Herman's withdrawal and call for discussion have left many questions unanswered. If the home can be considered a liable workplace, does OSHA's pending ergonomics rule apply to employees who take work home periodically or just telecommuters? Are employers required to conduct home inspections to eliminate any work-related safety or health problems? Who pays for remodeling homes that do not meet OSHA standards? And if it's decided that privacy rights prevent companies from requiring home inspections, is the company still liable if someone is injured or dies in a home office even though the employer has no right to control the property or even have access to it?

OSHA's recent actions threaten to have terrible consequences for businesses, parents, and communities. No employer in his or her right mind will start or expand telecommuting programs in such an uncertain legal environment, thus halting the tremendous gains in personal freedom that technology and telecommuting have given families over the past 10 years.

Working parents will no longer be able to be at home when their children get out of school, much less take care of them if they get sick. Not to mention the fact that many women who would otherwise telecommute so that they can be at home with their younger children will have to make a decision between economic security and being there for their kids. No one, especially in today's high-tech age, should have to choose between work and family, and the government definitely shouldn't force their hand.

OSHA has stepped all over itself and in the process put the health of our families and our new economy at risk. This is what happens when a bureaucracy tries to match a 30-year-old law with a 21st century workforce. The only remedy might be for Congress to update the OSH Act to protect private homes and telecommuting from the lethal hand of government regulation.