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Announcements by Ford Motor Co. and Delta Air Lines that they will provide computers and Internet access to all their workers at home will blur the line between work and home for many more employees. This particular employee benefit is also likely to add fuel to the fire ignited last January by a quickly withdrawn pronouncement by the Occupational Safety and Health Administration that it was going to hold employers responsible for the safety of workers who work in home offices. Although many professionals have telecommuted for years, Ford and Delta intend to make this benefit available to every employee. This new perquisite is expected to streamline communications with employees, as well as boost their morale. Whether the provision of computers will be deemed an extension of the workplace subject to the federal Occupational Safety and Health Act, 29 U.S.C. �� 651-678, may depend on both how voluntary the participation in the new benefit is, as well as the nature of the uses to which the employees put their new computers. Both companies are offering the computers as an option, not a requirement. Delta expects that its flight attendants will be able to check their schedules, bid for upcoming work assignments, take online training and fill out benefit forms from home rather than going to their assigned work locations for these matters. Similarly, Ford employees will be able to access Ford training programs, human-resources bulletins and company news through the Internet. Employees certainly would have engaged in some of these activities during their normal workdays, before the provision of home computers. On the other hand, both Ford and Delta are encouraging family members of their employees to use the company-provided computers and have indicated they will not monitor either the employees’ Internet use or e-mail. At least for those computer activities that are job-related, the new perquisite would appear to extend the Ford and Delta workplaces to the employees’ homes. REGULATING HOME OFFICES Of course, at the current time, OSHA has said it has neither the inclination nor the resources to regulate home offices. A firestorm of public and congressional outrage met OSHA’s initial assertion of home-office jurisdiction, which was contained in a letter issued in response to an inquiry from a Texas firm about its telecommuting salesmen. Afraid of being cast as “Big Brother,” OSHA quickly withdrew its letter, and Labor Department officials rushed to assure everyone that OSHA would not be looking into the home offices of telecommuters. Presumably, this new policy also will extend to the home offices of autoworkers and flight attendants. Nonetheless, OSHA has not completely forsaken home-based worksites. And, it is clear that OSHA currently has the statutory authorization to conduct home inspections when homes are used as workplaces. As Asst. Labor Secretary Charles N. Jeffress recently told Congress: “There is no provision in the [Occupational Safety and Health Act] that excludes workplaces that are located in a home.” The act never defines “workplace,” but describes the act’s goals as assuring “safe and healthful working conditions,” 29 U.S.C. � 651(b), without specifying where the work takes place. The act also defines an employer’s duty as furnishing a “place of employment” that is free from recognized hazards. 29 U.S.C. � 654. Under the standard described in Frank Diehl Farms v. Secretary of Labor, 696 F.2d 1325 (11th Cir. 1983), OSHA has statutory authority to regulate where “the conditions to be regulated must fairly be considered working conditions, the safety and health hazards to be remedied occupational, and the injuries to be avoided work-related.” In that case, the housing of migrant workers was deemed subject to OSHA regulation only if the workers were required by their employers to live there. OSHA’s current enunciation of its policy is that it will not hold employers responsible for work activities in home offices. However, where other types of work is performed at home, such as manufacturing, OSHA continues to regard employers as responsible for hazardous materials, equipment or work processes that they either provide or require to be used in the employee’s home. In addition, OSHA has indicated that it will conduct inspections of such home workplaces only when it receives a complaint or a referral. Of course, any such OSHA inspections must be conducted in compliance with the Fourth Amendment, which would require either consent to inspect or a warrant from an appropriate judicial authority. APPLYING OSHA REGS AT HOME Current OSHA regulations could have application to home-based worksites. For example, OSHA regulations permit an employer to have one central log (OSHA Form No.200) to keep track of injuries and illnesses of employees who are physically dispersed but subject to common supervision. 29 C.F.R. � 1904.14. Although the examples in the regulations pertain to installers and construction workers, there is no reason to assume that home-based worksites would not be included. Similarly, an employer whose home-based workers come in contact with hazardous chemicals in the course of their work must have a written hazard-communication program at each workplace, including a material safety data sheet and information about employee training. 29 C.F.R. � 1910.1200 (e)(1). In fact, OSHA’s Web site indicates that it has investigated homes used as workplaces on only two occasions, a small fraction of its 35,000 inspections conducted each year. (However, the withdrawn OSHA opinion letter also references “visits” the agency has made to private homes to investigate reports of sweatshop working conditions in the garment industry, without explaining the distinction between an investigation and a “visit.”) The two acknowledged home investigations both involved lead contamination. The first incident involved an employee who worked at home in Alabama casting lead head jigs for fishing lures, pouring and trimming the jigs at her kitchen table. The second home investigation was instigated by employee complaints to OSHA after their Colorado electronic capacitor plant was closed upon an OSHA inspection finding high blood lead levels. Employees then took work home. After the complaints, OSHA investigated three homes, where it found that workers were handling dangerous adhesives without gloves, risking liver damage or cancer, and using unguarded crimping machines, risking amputation. Given that the federal act permits a state, like California, with a federally approved job-safety and health program to promulgate standards covering hazards not addressed by federal standards, the possibility exists that the California Division of Occupational Safety & Health, commonly known as Cal-OSHA, could regulate in this area, even if the federal government does not. Cal-OSHA has already been involved in at least two different home investigations. One recent investigation involved employees of several Silicon Valley electronics manufacturers who were doing piecework assembly in their homes, typically involving the use of lead solder and acid flux. The other investigation, in 1998, related to a home fireworks factory that resulted in an explosion and fire, destroying the house. Federal OSHA’s recent backpedaling on the question of whether it will seek to enforce worker safety regulations in home offices does not end the story. Members of Congress already have introduced legislation to prevent OSHA from conducting inspections of home worksites. The House has introduced two bills, H.R. 3530 and H.R. 3539, each a one-sentence proposal that would deny OSHA jurisdiction over “employment performed in a workplace located in the employee’s residence.” Such legislation would prevent OSHA from holding employers responsible for the types of home worksites involved in the previous OSHA home investigations. An alternative approach is that proposed by Rep. Tom Davis, R-Va., in H.R. 3518, which would exempt from OSHA regulation only work that is “performed in a workplace through the use of a telephone, computer or other electronic device which is located in the residence of the employee engaged in such employment.” The future of these bills is completely uncertain. Until Congress acts to clarify the scope of OSHA’s regulatory powers, companies with home-based workers should keep in mind their obligation to prevent or correct hazards to which employees may be exposed in the course of their work. If the employer knows or reasonably could be expected to know of a dangerous condition in that part of the home where the work is performed, the employer should consider providing written guidelines describing how the work can be done safely. Following OSHA’s lead, these laws are unlikely to be applied to the offices of a telecommuter, but a home-based catering business, for example, should be alert to their requirements. Of course, state and federal wage-and-hour laws apply to employees performing work at home. Linda S. Peterson is a partner at Sidley & Austin, where she specializes in complex civil litigation, including product liability and employment law. E-mail: [email protected].

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