OSHA Sends Mixed Message On Home Office Safety
Washington, D.C. -- Not too long ago, OSHA defenders stormed Capitol Hill to defend the agency from slurs of Big Brotherism. With the snap of a finger and a new 1995 Republican Congress, the new OSHA was born.
In testimony before the Senate Labor Committee in November 1995, then Assistant Secretary of Labor Joseph Dear outlined reinvention efforts under way at the new OSHA. From a model based on command and control, to one giving employer's a choice between a cooperative partnership or a traditional enforcement relationship, Dear's testimony detailed the agency's reinvention and commitment to fixing out-of-date and confusing standards.
Fast forward to November 1999. Five years have passed. A guidance letter to a Texas-based employer appears on the agency's Web site, declaring the inquiring party responsible for the safety of its telecommuters' home worksites. A national firestorm erupts as the word reached critical mass in the first days of 2000. Telecommuters organized quickly, expressed their outrage to Washington, and Labor Secretary Alexis Herman promptly pulls the letter. Alienating some 17 to 19 million teleworkers is not politically smart in an election year, so telecommuters and their modern-thinking employers are safe, at least for another year.
Or are they? Secretary Herman withdrew the letter to alleviate widespread confusion and unintended consequences for others, but some argue that it is understandable if employers are more perplexed than ever. According to an analysis by Mark Wilson, a research fellow at The Heritage Foundation, the recent policy blunder has left employers in the worst of all possible worlds -- legal uncertainty.
With the labor secretary admitting the rules are unclear, it appears the new OSHA's commitment to updating its fuzzy and unclear standards failed a major 21st century test. In Wilson's report (www.heritage.org/library/execmemo/em641.html), the Questions Left Unresolved section would make any pro-telecommuting employer wish for the days of the IBM Selectric. For example, who pays for remodeling homes that do not meet OSHA standards, the report queries.
Wilson's solution: Only Congress can revisit OSHA to make clear that home-office inspections are a non-starter, and that employer liability stops at the telecommuter's front door. A popular OSHA watchdog publication, "Inside OSHA," contends that an earlier document governing telecommuters sheds light on actual policy. An Oct. 7, 1993 letter, using the term flexi-place to describe telecommuting arrangements, says: "Assurance of safe and healthful working conditions for the employee should be a precondition for any home-based work assignment. This includes materials, equipment and methods provided or required by the employer. We reserve judgment at this time as to the extent of other conditions found in the home workplace."
And here's an added kicker: "We note, however, that the home workplace may create special hazards for others who dwell with the worker, especially children."
Here we go again. Another government policy developed in the name of protecting children. (And telecommuting parents thought that their work/home arrangement was for their children's benefit.)
The recent ergonomics rule proposed by OSHA only exacerbates the telecommuting conundrum. OSHA published the proposal at about the same time as the guidance letter on home offices in November 1999. Just as vague and confusing as their policy is on home offices is the proposed ergonomics rule.
Critics of the proposed regulation contend that OSHA takes the old saying "if it moves, regulate it" to the extreme. A comprehensive study, "Overstressing Business: OSHA and Ergonomics" (www.nlcpi.org/welcome.html), published by the National Legal Center for the Public Interest, states that any symptom exhibited by an employee that could potentially lead to a musculoskeletal disorder (MSD) including pain, tingling, stiffness, numbness, cramping, or burning, and in connection with a job by any worker, should be sufficient to start the regulatory machinery in motion.
Combine the 1993 flexi-place guidance letter with the new ergonomics rule, and things could get rather messy. For example, if a child is asked to bring a pencil from the kitchen table to telecommuting Mom or Dad, and they strained their little finger in the process, is the employer obligated to report this and establish an ergonomics program for the worker's family? This hypothetical may sound a little far-fetched, but we can only wonder what guidance an OSHA regulator would provide if given that opportunity.
Getting mixed messages from OSHA does not come as a surprise to employers. Businesses have strong incentives to maintain safe and healthy workplaces, yet OSHA's aggressive rulemaking continues to be based on an archaic understanding of the modern work force and the desire for employers to keep employees happy, safe and healthy. It is rather odd, but sadly predictable, that OSHA would release a survey demonstrating overwhelming employer responsibility regarding to workplace safety and health in the same month that they published their guidance letter on telecommuters as well as the proposed ergonomics regulation.
The survey (www.osha.gov/media/oshnews/nov99/trade-19991112.html) found that 85 percent of employers conduct self-audits of safety and health conditions in the workplace. Employers said they carry out these audits for several reasons. Eighty-three percent did so to reduce injury and illness rates; 79 percent wanted to be in compliance with OSHA regulations; and 79 percent wanted to do the right thing.
OSHA took credit for the high percentages, stating it is evidence that their policies to encourage self-inspections are working. Employers received no praise for their efforts. There's still time for Congress to do the right thing and clip OSHA's sails before the agency ends up spoiling a good thing when it comes to advancements and changes in the workplace that benefit both the employer and America's modern work force.
Karen Kerrigan, Chairman of the Small Business Survival Committee.
Chairman, Small Business Survival Committee
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