What, If Anything, Does OSHA Require You to Do to Protect Telecommuters?

While telecommuting is nothing new, the imperative for using it has never been greater. In addition to all the cost-saving, work-life balance, recruiting and hiring advantages, letting employees work from home during a pandemic has become a vital infection control measure. But it also poses significant compliance challenges, particularly in the realm of OSHA. After all, how are you supposed to meet your duty to protect the health and safety of lab employees if they work from home at a location beyond your physical control? This article will provide the answer. Spoiler Alert: OSHA requirements don’t generally extend to employees working from home; but you still can and should take some basic steps to ensure their health and safety. OSHA & Telecommuters The Occupational Safety and Health Act (Section 4(a)) applies to “employment performed in a workplace.” Although the Act doesn’t define “workplace,” the case can be made that the concept includes any location in which employees perform job duties on a lab’s behalf, including a home office. OSHA addressed the issue in 1999 in response to a letter from a company CSC Credit Services asking what, if anything, it had to do to protect the health and safety of sales executives telecommuting from home. OSHA’s answer: “Employers should exercise reasonable diligence to identify in advance the possible hazards associated with particular home work assignments, and provide the necessary training, PPE or other controls to reduce or eliminate the hazard.” In some cases, that might require doing an on-site inspection of the telecommuter’s workplace, OSHA added. This wasn’t the first time that OSHA had issued an advisory opinion suggesting that the law applied to home work sites. But it was the first time the opinion drew public attention. In January 2000, the Washington Post published an article about the letter and OSHA’s position, detonating a firestorm of protest from the media, U.S. Chamber of Commerce, members of Congress and the White House. Within days, the Department of Labor withdrew the letter. And on Feb. 25, 2000, OSHA issued guidance (Directive Number: CPL 2-0.125) to inspectors about worksites inside an employee’s home. The guidance makes three key points:

• OSHA won’t do inspections of employees’ home offices;
• OSHA won’t hold employers liable for employees’ home offices; and
• OSHA doesn’t expect employers to inspect the home offices of their employees.

The Injury Reporting Caveat Even though labs and other employers don’t have liability or a duty to go into an employee’s home office to do an inspection, they still have recordkeeping obligations for any work-related injuries or illnesses the employee suffers, regardless of whether they occur at the lab, in the home office or anywhere else. In a March 30, 2009 advisory letter, OSHA made it clear that “injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if they occur while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” OSHA also lists examples:

• Work-related: Employee drops a box of work documents and injures his/her foot;
• Not work-related: Employee is electrocuted at home because of faulty home wiring.

The Workers Comp Caveat In addition to OSHA recordkeeping responsibilities, workers comp laws cover injuries and illnesses that “arise out of or occur during the course of employment.” That would generally extend to injuries suffered by telecommuters while performing work functions in their home office, e.g., the foot injury caused by the employee’s dropping a box of work documents listed above. How to Protect Telecommuters So, it comes down to this. OSHA requires you to track, record and report the work-related illnesses and injuries suffered by telecommuters while they’re working from home; but it doesn’t require you to take any special measures to prevent those illnesses and injuries. Of course, there’s more to life than OSHA. In addition to being a moral duty, protecting telecommuters enables you to avoid workers comp claims, productivity losses and other costs associated with employee injuries and illnesses. If you are prepared to go the health and safety route, require lab employees seeking approval to telecommute to designate a room or area as their home workspace. Then, somebody should perform a hazard assessment inspection to verify that the workspace is:

• Appropriate for the work;
• Well lit;
• Properly ventilated;
• Free of obstructions and trip and fall hazards;
• Equipped with appropriate first aid supplies and equipment;
• Free of biohazards and other hazardous materials;
• Free of electrical hazards;
• Secure;
• Ergonomically safe; and
• Compliant with fire and building codes.

There are three ways to go about performing the hazard assessment:

• Option 1: Have a lab supervisor or manager visit the site and do a physical walk-through inspection;
• Option 2: Have the employee videotape the space and/or submit detailed photos and a floor plan and do the inspection virtually;
• Option 3: Have the employee inspect the space himself/herself.

While Option 1 is most likely to provide accurate and meaningful results, it’s also the most privacy-invasive and could raise liability issues. Best Practice: In any event, have the person who does the assessment use the Telecommuter Home Office Hazard Assessment and Inspection. Injury and Incident Reporting One final loose end: Require employees who work from home to immediately notify their supervisors of any injuries or safety incidents that occur in their workspace, just the way they’d have to do for work incidents at the organization’s own facilities. Employees should also provide you either access to the space or the information you need to maintain OSHA Logs for their work injuries and illnesses.