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USDoL Secretary
of Labor Herman Retracts OSHA's Policy on Home Offices
OSHA's November 15, 1999,
letter to one employer provided guidance to him on his employees
working at home. 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.
Since Congress passed the
Occupational Safety and Health Act in 1971, employers have had
the responsibility for making sure that all employees work in
safe and healthful conditions. Given the changing nature of work
in the 21st century, yesterday I called for a national dialogue
to determine what the rules and policies should be for America's
workers. Over the past two days, I have spoken individually with
business and labor leaders. To begin this dialogue, I will host
a meeting of national business and labor leaders and other interested
parties in the near future.
Family-friendly, flexible
and fair work arrangements, including telecommuting, can benefit
individual employees and their families, employers and society
as a whole. As part of this continuing effort, 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. As Secretary of Labor, I remain committed to
policies that both strengthen families and protect workers on
the job.
OSHA's Retracted
Policy Concerning Employees Working at Home
Record Type: Interpretation
Standard Number: 1904.14;1910.1200(g);1910.147;1910.146;1910.132
Information Date:11/15/1999
Thank you for your August
21, 1997 letter to the Occupational Safety and Health Administration's
(OSHA's) Directorate of Compliance Programs (DCP), requesting
information on OSHA's policies concerning employees working at
home. We apologize for the delay in responding.
Specifically, you state that
your company will be placing some of its sales executives in
home office environments. You state that the home office is generally
a single room within the home of the sales executive that would
have a desk, chair, file cabinet, business telephone, desktop
or laptop computer, printer and a fax machine. You ask several
specific questions that would apply specifically to your sales
executives, as well as general questions that could apply to
many other types of home work situations.
Question #1:
What is the employer's obligation
within the home work environment?
Response #1:
The OSH Act applies to work
performed by an employee in any workplace within the United States,
including a workplace located in the employee's home. All employers,
including those which have entered into "work at home"
agreements with employees, are responsible for complying with
the OSH Act and with safety and health standards.
Even when the workplace is
in a designated area in an employee's home, the employer retains
some degree of control over the conditions of the "work
at home" agreement. An important factor in the development
of these arrangements is to ensure that employees are not exposed
to reasonably foreseeable hazards created by their at-home employment.
Ensuring safe and healthful working conditions for the employee
should be a precondition for any home-based work assignments.
Employers should exercise reasonable diligence to identify in
advance the possible hazards associated with particular home
work assignments, and should provide the necessary protection
through training, personal protective equipment, or other controls
appropriate to reduce or eliminate the hazard. In some circumstances
the exercise of reasonable diligence may necessitate an on-site
examination of the working environment by the employer. Employers
must take steps to reduce or eliminate any work-related safety
or health problems they become aware of through on-site visits
or other means.
Certainly, where the employer
provides work materials for use in the employee's home, the employer
should ensure that employer-provided tools or supplies pose no
hazard under reasonably foreseeable conditions of storage or
use by employees. An employer must also take appropriate steps
when the employer knows or has reason to know that employee-provided
tools or supplies could create a safety or health risk.
Question #2:
Is the employer responsible
for compliance with the home itself?
Response #2:
An employer is responsible
for ensuring that its employees have a safe and healthful workplace,
not a safe and healthful home. The employer is responsible only
for preventing or correcting hazards to which employees may be
exposed in the course of their work. For example: if work is
performed in the basement space of a residence and the stairs
leading to the space are unsafe, the employer could be liable
if the employer knows or reasonably should have known of the
dangerous condition.
Question #3:
Is the employer required
to do periodic compliance inspections in the home, which may
include safety, health, fire, and environmental issues?
Response #3:
There is no general requirement
in OSHA's standards or regulations that employers routinely conduct
safety inspections of all work locations. However, certain specific
standards require periodic inspection of specific kinds of equipment
and work operations, such as:
· ladders (§1910.25(d)(1)(x))
and §1910.26(c)(2)(vi));
· compressed gas cylinders
(§1910.101(a));
· electrical protective
equipment (§1910.137(b)(2)(ii));
· mechanical power-transmission
equipment (§1910.219(p));
· resistance welding
(§1910.255(e)); and
· portable electric
equipment (§1910.334(a)(2)).
Although some of these operations
may not be found in home-based workplaces, nevertheless, if an
employer of home-based employees is aware of safety or health
hazards, or has reason to be aware of such hazards, the OSH Act
requires the employer to pursue all feasible steps to protect
its employees; one obvious and effective means of ensuring employee
safety would be periodic safety checks of employee working spaces.
This letter addresses only
the employer's responsibilities under the OSH Act. Depending
on what kind of business the "at home" employer is
engaged in, he or she may have additional responsibilities under
other federal labor or environmental laws, as well as under state
laws of general applicability, such as public health, licensing,
zoning, fire and building codes, and other matters.
Question #4:
What would be OSHA's inspection
procedures in a private home?
Response #4:
OSHA's health and safety
inspection program is directed primarily toward industrial and
commercial establishments and construction sites. We do not ordinarily
conduct inspections of home-based workplaces, although from time
to time we have visited private homes or apartments to investigate
reports of sweatshop-type working conditions in the garment industry
and other businesses. We would also investigate work-related
fatalities occurring in home-based workplaces. Any OSHA enforcement
visit must, of course, be conducted in compliance with the Fourth
Amendment which would require that OSHA obtain either consent
to inspect or a judicially-issued warrant.
Question #5:
Does the employer have to
include these home locations in its file regarding record keeping
on the OSHA 200 logs?
Response #5:
Employers are not required
to maintain an OSHA 200 Log for each home. As stated in 29 CFR
1904.14, which concerns employees not in fixed establishments,
employers of employees engaged in physically dispersed operations
may satisfy the provisions of 1904.2, 1904.4, and 1904.6 with
respect to such employees by maintaining the required records
for each operation or group of operations subject to common supervision
(field superintendent, field supervisor, etc.) in an established
central place.
Injuries and illnesses that
occur to employees working at a home location are recordable
on the employer's OSHA 200 Log, if they are work-related and
meet the criteria for an OSHA recordable injury or illness under
29 CFR Part 1904.2 and the Recordkeeping Guidelines for Occupational
Injuries and Illnesses. Injuries and illnesses that result from
an event or exposure off the employer's premises are work- related
if the worker was engaged in work-related activities or was present
as a condition of his or her employment (see Recordkeeping Guidelines,
page 35, Section 2). These criteria must be applied to employees
who work at their homes.
If an employee was injured
or became ill while performing duties in the interest of the
employer, the case would be considered work-related. If an employee
was injured or became ill while performing normal living conditions
(e.g., eating), the case would not be considered work-related.
For example, when an employee who works at home doing typing
develops carpal tunnel syndrome, it must be determined whether
the employee's work duties in any way caused, contributed to,
or aggravated the condition. If so, the condition is considered
work-related for OSHA recordkeeping purposes.
Below are responses to other
general questions.
Workplace Analysis and Hazard
Prevention: The employer is responsible for correcting hazards
of which it is aware, or should be aware. If, for example, the
work requires the use of office equipment (computer, printer,
scanner, fax machine, copying machine, etc.) in an employee's
home, it must be done manner. For example, from a fire safety
aspect the installation must not overload the home electrical
circuits.
Training -- Can the training
be in written form? In addition to any training requirements
imposed by specific standards, employee training is one way for
an employer to meet its general responsibility under the OSH
Act for preventing violations. In the absence of specific requirements,
the type of training that should be provided will be measured
by what a reasonably prudent employer would do under the circumstances,
taking into consideration such factors as the nature of the potential
hazards and the abilities of the employees. It will not always
be necessary for training to be in written form. On the other
hand, written training alone may not be sufficient.
Ergonomics: From the information
you have provided, your employees could be exposed to ergonomic
hazards. We have, therefore, enclosed a booklet entitled, Working
Safely with Video Display Terminals, 1997 OSHA Publication 3092,
which may be helpful in addressing these hazards.
Fire Protection, Lighting,
Cooling, Heating, and Ventilation: See response to Question #2,
above.
Asbestos, Chemicals or Toxic
Materials within the Home Itself -- Would Material Safety Data
Sheets (MSDS) be Required? The employer is responsible for making
the workplace of its employees safe, not the entire home. If
the employee will be performing work for the employer that involves
exposure to any chemical substance for which an MSDS is required,
then the MSDS must be present at the home worksite. However,
an employer need not supply an MSDS if the hazardous chemical
is a consumer product that is being used by an employee in the
home office for the purpose intended by the manufacturer, and
the use results in a duration and frequency of exposure which
is not greater than that experienced by consumers.
Lockout/Tagout and Confined
Spaces: If an employee is performing servicing and maintenance
on machines or equipment which are used to perform his or her
job, then the 1910.147 lockout/tagout standard applies. With
regard to other equipment that may be in the home, the employer
would have no responsibility. As long as the designated workplace
is within the existing habitat space of the home, then the 1910.146
confined space standard would not apply. However, since you have
not provided examples of such situations, we can give only general
answers.
Bloodborne Pathogen Exposures:
A home office for a sales executive is not covered by OSHA's
bloodborne pathogen standard since the standard is intended to
protect employees who are exposed or potentially exposed to blood
or Other Potentially Infectious Materials (OPIM). This issue
cannot be addressed further without knowing a specific factual
situation in which employees in their own homes would be exposed
to bloodborne pathogens while performing a work-related task.
Means of Ingress and Egress:
Many building/fire codes require offices to have two entrances/exits.
This, however, does not mean that OSHA would require installation
of a second entrance/exit in an employee's workroom in the employee's
home unless the nature of the work and the surroundings create
a heightened risk of fire. However, see response to Question
#3, above.
Personal Protective Equipment
(PPE): The employer is required to assess the workplace to determine
if hazards which necessitate the use of personal protective equipment
(PPE) are present, or are likely to be present. If these hazards
are or are likely to be present then the employer must provide
both the PPE and the necessary training. Employees must be trained
in the proper use and maintenance of personal protective equipment,
and the employer must verify, through a written certification,
that each affected employee has received and understands the
required training.
OSHA requires employers to
make sure employees have and use safe tools and equipment and
that such equipment is properly maintained. Employers are also
required to establish or update operating procedures and communicate
them to employees so that they will follow safety and health
requirements.
Emergency Plans, Medical
Assistance Services, and First Aid Kits and Training: Until OSHA
develops policies for these issues as they apply to employees
working in their homes, enforcement will necessarily be on a
case-by-case basis. The seriousness of the potential hazards
will be an important consideration.
Lead Levels in Old Paint:
See response to Question #2, above.
OSHA Consulting Services:
Consultation is a voluntary activity; i.e., the service is not
automatic, but must be requested by the employer -- it cannot
be requested by the employee. The service is provided chiefly
at the worksite, but limited services may be provided away from
the worksite via offsite training to employers and their employees.
When an employer requests onsite Consultation services, the request
is prioritized according to the nature of the workplace and any
existing backlog of requests. In the case of home-based worksites,
a Consultation visit would be classified as "high hazard"
only if particularly dangerous work processes or work areas are
within the "work zone" of the home.
Due to the limited resources
available to the State Consultation Projects, requests form employers
that cover only one employee at a home-based worksite would usually
be given a very low scheduling priority, particularly when the
requested service relates to low hazard activities. In all likelihood,
therefore, a Consultation visit would occur only in unusual situations,
and then only with the consent of the home-based employee. The
inability of OSHA to provide such free onsite assistance in such
cases does not, however, relieve the employer of the responsibility
to continue to provide safe and healthful work and workplace
conditions for all employees, including those based at home.
Other Consultation services
are available to employers and their employees, such as dissemination
of informational materials and providing telephone assistance
on technical and compliance-related issues. Further, offsite
technical assistance could be provided to employers and their
employees at locations other than the employee's home-based worksite,
such as in the State Consultation Project office. Offsite assistance
is typically provided in situations where offsite training would
be the best use of Consultation resources to address a training
need common to a number of employers.
The involvement of employees
is key:
· to ensuring the
fullest protection of employees in the workplace;
· to properly identifying
and assessing the nature and extent of hazards; and
· in determining the
effectiveness of the employer's efforts to establish and maintain
a workplace safety and management program.
However, in the case of home-based
worksites, employees would be involved only where they had freely
consented to the provision of assistance requested by the employer,
and then only within the parameters defined above.
Americans with Disabilities
Act (ADA) compliance and Workers' Compensation: An employer's
responsibility under the ADA falls outside OSHA's statutory authority.
Similarity, OSHA cannot address the responsibility for workers'
compensation in this type of situation, since OSHA does not have
statutory authority in this area. For information concerning
an employer's responsibility for workers' compensation the employer
should contact the workers' compensation agency in the State
in which the workplace is located.
Thank you for your interest
in occupational safety and health. We hope you find this information
helpful. Please be aware that OSHA's enforcement guidance is
subject to periodic review and clarification, amplification,
or correction. Such guidance could also be affected by subsequent
rulemaking. If you have any questions, please feel free to contact
Helen Rogers in the Office of General Industry Compliance Assistance
at (202) 693-1867.
Sincerely, Richard E. Fairfax,
Director, Directorate of Compliance Programs
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