In the old street scam of “find the pea,” the crooked magician hides a pea or other small object under one of three walnut shells or other hemispherical covers. The object, of course, is for the victims to guess the location of the pea after the shells have been shuffled. It is impossible to guess correctly, because the pea has been hidden elsewhere during the shuffle.
Using similar sleight of hand, the Occupational Safety and Health Administration (an arm of the U.S. Department of Labor) issued a letter in November 1999 defining employers’ responsibilities for the health and safety of employees who work from home. A month later, after the press and media published alarming news stories, OSHA withdrew the letter. The obnoxious “pea” simply disappeared! Or did it?
The letter was written in response to an inquiry from CSC Credit Services in Texas. It was a standard OSHA reply to a request for information. The first question asked by CSC Credit was, “What is the employer’s obligation within the home work environment?”
OSHA’s answer should send a chill up the spine of every employer who seeks the benefits of allowing workers to spend all or part of their paid hours working at home. The existing OSHA interpretation of the law is: “The Occupational Safety and Health Act applies to work performed by an employee in any workplace within the United States, including a workplace located in the employee’s home.”
But, I hear you object, the letter was withdrawn! True. But the letter was not a proposed rulemaking notice or other prospective policy-making statement. It was clearly labeled an “interpretation” of current OSHA policy.
In other words, the letter was whisked off the table, but the policy remains hidden in OSHA’s back pocket. The broadly worded policy stated that an employer is responsible for “ensuring safe and healthful working conditions for the employee” for “any home-based assignments.”
While it is unlikely that OSHA is going to start inspecting the alcoves where teachers prepare and grade homework assignments, the genie is already out of the bottle. Unless OSHA issues an affirmative ruling that the law does not apply, lawyers representing employees who are injured or become disabled at home when performing work assignments are going to use the “hidden pea” to seek recompense for their clients.
The most obvious potential exposure for school districts would arise under an application of the evolving OSHA standards on working with computers. Already a concern throughout the information technology industry, OSHA’s increasing interest in ergonomics has already produced OSHA publication 3092, “Working Safely with Video Display Terminals.”
The potential for legal exposure for employers who allow telecommuting or performance of regular work assignments at home goes way beyond OSHA. Although OSHA does not have jurisdiction over workers’ compensation or the applicability of the Americans with Disabilities Act, the OSHA letter specifically mentioned these laws and indicated that other federal and state agencies may have rules that cover at-home assignments as well.
Put yourself inside the head of a lawyer who is seeking new ways to afford everything from a new Lexus to college tuition payments. The visions of legal fees are too tempting to drop the issue just because OSHA reacts to some bad publicity by withdrawing its interpretation letter.
Before you push the panic button and halt all telecommuting and at-home work assignments, keep in mind that OSHA can, and hopefully will, clarify its policy in a future rulemaking proceeding. At the same time, it is an area of potential legal exposure that you cannot afford to ignore much longer.
The computer is becoming a fixture in every workplace, including public schools. Working from or at home is one of the great advantages of the portability of information and work products made possible by computers. The phantom OSHA policy may seem like a harmless hidden pea for now. But like the soft-skinned princess in the fairy tale, if we sit on it long enough, it is sure to make its presence felt.