Since early 2020, many company personnel who typically work in an office and/or field environment have instead been working remotely from their homes (or “teleworking”) on a part-time or full-time basis. The United States (U.S.) Bureau of Labor Statistics reported that about one in four people employed in August 2020 teleworked or worked from home for pay. The 24 percent (%) of workers who teleworked in August was down from 35% in May, the first month these data were collected.
Moreover, there appears to be a growing belief that teleworking may become the new normal for many employees. With that in mind, a question that arises is “To what extent must employers ensure that their home-based employees are working in a safe environment under the Occupational Safety and Health Act (OSH Act)” The quick answer is that it depends on the type of remote work. Conducting a Job Safety Analysis (JSA), for home-based workers may be appropriate and help satisfy some Occupational Safety and Health Administration’s (OSHA) requirements.
Under the OSHA General Duty Clause (Section 5(a)(1) of the OSH Act), every employer has a general duty to furnish to each of its employees: "…employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” That duty applies regardless of the location where the employees are working, including the home of an employee. With that said, an employer is only responsible for ensuring that an employee has a safe and healthy workplace within the home, not a safe and healthy home . The employer is responsible only for preventing or correcting hazards to which employees may be exposed to during their work in the designated workplace of the home. A Job Hazard Analysis (JHA) or Activity Hazard Analysis (AHA) can help to identify hazards and associated risks for home-based workers.
Some of these hazards may include asbestos, lead-based paint, chemicals, and other potentially toxic materials. If the employee will be conducting work for the employer that involves exposure to any chemical substance for which a Safety Data Sheet (SDS) is required, then the SDS must be present at the home worksite. However, an employer does not need to provide an SDS 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.
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 PPE, and the employer must verify, through a written certification, that each affected employee has received and understands the required training.
For situations where the employee conducts office work activities at home (ergonomic hazards associated with filing, computer work, word processing, reading, writing, etc.), employers have little responsibility. In fact, OSHA has issued guidance indicating that:
- OSHA will not conduct inspections of home offices of employees.
- OSHA will not hold employers liable for the home offices of employees.
- OSHA does not expect employers to inspect the home offices of employees.
For other home-based work, such as home manufacturing operations, OSHA will only conduct an inspection if a complaint indicates that a violation of a safety or health standard exists that threatens physical harm or that an imminent danger exists. However, the inspection will be limited to the employee’s work activities, not the entire home or furnishings. Although the inspections will be limited, employers are still responsible for hazards caused by materials, equipment, or work processes that it provides or requires to be used in an employee’s home. An employer must take the appropriate steps when the employer knows or has a reason to know that supplies or tools provided by the employee may create a risk to health and safety.
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.
There is no general requirement in OSHA's standards or regulations that employers routinely conduct safety inspections of all work locations, including at the home of an employee. However, certain specific standards require periodic inspection of specific kinds of equipment and work operations, such as:
- ladders
- compressed gas cylinders
- electrical protective equipment
- mechanical power-transmission equipment
- resistance welding
- portable electric equipment
Although some of these operations may not be found in home-based workplaces, if an employer of a home-based employee 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. An obvious and effective means of ensuring employee safety would be periodic safety checks of employee working spaces by the employer.
Depending on what kind of business the "at home" employer is engaged in, the employer 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.
Also, employers, who are required to keep records of work-related injuries and illnesses under the OSH Act, are responsible to do so even if the injury or illness occurs in an employee’s home. For employees working remotely, OSHA requires the employee to be linked to a home establishment and that any illnesses meeting the recording criteria should be recorded on that home establishment’s OSHA 300 log.
Essentially, there is not an exception for work-related injuries or illnesses that occur at home. However, for an injury sustained at home to be considered a “work-related” injury, it must 1) have occurred while the employee is being paid to work, and 2) be directly related to the performance of the employee’s work duties (rather than to the general home environment). It is also notable that employers likely would remain responsible for injuries arising at home worksites pursuant to state worker’s compensation laws and/or under a tort theory, such as negligence. Accordingly, employers should have a legal obligation in helping ensure home worksites are safe. Some recommended best practices are as follows:
- Provide assistance/guidance to employees on the setup of the home worksite. For example:
- If an office-type home worksite : Consider developing a YouTube video or written handout, such as in the Job Safety Analysis, giving instructions on the setting up of equipment in ergonomic fashion, electrical setup (i.e., only plug in two electrical devices in an outlet) etc.
- If a manufacturing-type home worksite : Ensure that employees have training on equipment and in handling all hazardous or dangerous materials used in the manufacturing. Include a hazards and risk assessment of the set up and use of equipment and material handling in the Job Safety Analysis. Consider having the equipment professionally set up at the employee’s home (rather than having the employee do the setup).
- Establish a hotline or other communication mechanism for remote employees to call if in need of assistance.
- A best practice is to include a checklist in the Job Safety Analysis addressing safety and productivity issues, and have employees complete the checklist on a pre-determined periodic basis (i.e., monthly, bi-annually, annually).
- Another best practice is to including a training schedule in the Job Safety Analysis for remote employees regarding their obligations to report alleged work injuries and/or illnesses, and how to report such injuries and/or illnesses.
- Take measures to help ensure proper insurance coverage for work injuries/illnesses and personal injury, property loss or professional or other similar service liability coverage. For instance, speak with worker’s compensation coverage provider to ensure coverage of home-based employees, including employees who may reside in another state.
Several legal and practical issues arise when employees work from home. So be sure to involve senior management and an appropriate employment law attorney when deciding on and implementing best practices in addressing the issues.
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