The U.S. Department of Labor doused a fire storm of criticism this week when it withdrew a federal regulations interpretation letter that said employers were responsible for making sure employees who worked at home had a workplace that was safe, healthy and otherwise in compliance with Occupational Safety and Health Administration regulations.

Labor Secretary Alexis Herman said the letter drafted by OSHA officials was never intended to be taken as a statement of policy for the entire business community.

OSHA's response had answered a query from Houston, TX-based CSC Credit Services a consumer credit services company, that years ago asked OSHA what regulations might apply to members of its sales force if they worked at home.

"Employers should exercise reasonable diligence to identify in advance the possible hazards associated with particular home work assignments, and should provide the necessary protection through training, personal protective equipment, or other controls appropriate to reduce or eliminate the hazard," the now recanted letter said in part.

Herman said, "It was a letter to one employer. It provided guidance to him on his employees working at home."

The surprise ruling could have had implications not only to the nearly 20 million employees who routinely work from home, but also occasional home workers -- theoretically even an independent broker's real estate agent who completes paperwork at home.

"The letter, however, caused widespread confusion and unintended consequences for others. And therefore, as a result of those unintended consequences, I have made a decision to withdraw the letter today," Herman said Jan. 6.

The heavily regulated real estate industry was fuming over OSHA's response which the Washington, D.C.-based National Association of Realtors considered "invasive". In a preliminary response to OSHA's ruling, the association said because most REALTORS are independent contractors, the ruling should not affect them and that the ruling was a solution for a problem that didn't exist.

Real estate agents, appraisers, mortgage brokers and others routinely work at home and even those who consider themselves independent contractors might not have escaped the ruling, depending upon how OSHA defined "employee".

"Is it someone on somebody's payroll or is someone who is being compensated? Whatever it is, it could change. This is an outrageous expansion of the federal government and it has tremendous privacy implications," said Silver Spring, MD-based Peter Miller, real estate author and industry observer.

Had the ruling been left in place it could have mandated that employers saw to it that home workers had ergonomically correct office furniture and adequate and safe lighting, heating, cooling and ventilation systems in the home office, just as employers must do on the work site.

Home workers routinely use potentially hazardous halogen lamps and portable heaters as inexpensive alternatives to lighting and heating needs. Some models of both those products as well as other consumer products commonly used in the home have been recalled by the Consumer Product Safety Commission.

Under the now withdrawn OSHA interpretation, employers would have had to make sure employees were free from exposure to hazardous materials and they could have been mandated to train work-at-home employees in OSHA health and safety practices, including the use of emergency medical kits, as well as emergency medical plans, again, as is required at work sites.

If an employee was injured or became ill while working at home, the employer also would have had to report the incidents on the OSHA-required employer's injury log along with incidents that occur at the work site.

"What you really have here is the creation of a new law without the involvement of Congress," said Miller before the letter was withdrawn.

The letter could also have triggered invasive home inspections.

"In some circumstances the exercise of reasonable diligence may necessitate an on-site examination of the working environment by the employer. Employers must take steps to reduce or eliminate any work-related safety or health problems they become aware of through on-site visits or other means," the letter said.

Critics also said the letter could have opened the door to a barrage of lawsuits -- with mixed results. "The insurance industry will most likely respond negatively after a law suit is won by a home-based employee against an employer over something silly like the lack of ventilation or falling down the stairs," said Ken Willis, president of the League of California Homeowners.

"This ruling may mean that fewer employers will be able to allow their employees to work at home," Willis added.

Published: January 6, 2000

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A journalist for 35-years, Broderick Perkins parlayed an old-school daily newspaper career into a digital news service offering editorial content and consulting services. Perkins' San Jose, CA-based DeadlineNews Group includes the flagship news site, DeadlineNews.Com, offering real estate, personal finance and consumer journalism, and a backshop, the Deadline Newsroom.