John A. Quayle blueoval at SGI.NET
Fri Jan 7 23:13:33 MST 2000

        The Free Congress Commentary Secretary Herman's "National Dialogue" Raises
Controversy by: John Nowacki

        This week, it was revealed that the Occupational Safety and Health
Administration (OSHA) had taken the position that employers were required
to keep the workplace (read: home) of telecommuting employees in compliance
with the agency's labyrinthine regulations. In a letter to a company that
requested information about home-workplace rules, the agency said that
"ensuring safe and healthful working conditions for the employee should be
a precondition for any home-based work assignments." The uproar began
immediately, and OSHA backed off, with Labor Secretary Alexis Herman saying
the controversial position had never been reviewed by her office, and that
we should now have a national dialogue on the matter.

        But while the government has supposedly relented, it is interesting to
note that letter was meant as a statement of existing policy.  Was the
letter merely withdrawn, or was the regulatory interpretation reversed?
According to news reports, Herman declined to answer questions about
employer liabilities while expressing regret for the "widespread confusion"
her department had caused.  But her statement did emphasize that employers
are responsible for ensuring that "all employees" work in "safe and
healthful conditions."

        The notion that employers are responsible for "safety" in an employee's
house is ridiculous. "OSHA only inspects homes in the events of fatalities
or serious injuries," Herman declared. So, are businesses supposed to
police the home, making sure the kids don't leave roller skates at the
bottom of the stairs, the lighting is just right, and that air quality is
within set parameters? How much of a person's home would be designated part
of the office, anyway? If a worker is still on the clock, but goes to the
kitchen for a glass of water, does employer liability still apply? How does
all this apply to liability for accidents to visitors to the home office,
e.g. the neighbor who stops by?

        This all reminds me of an infamous Commerce Clause case discussed in the
first year of law school. During the Depression, a farmer who grew his own
food was found to be subject to congressional regulation, because by some
stretch of the imagination, he was engaged in interstate commerce. It seems
that OSHA regulations, like the Commerce Clause, are liable to being
stretched beyond all comprehension.

        If OSHA extends its long reach even further, the only beneficiaries will
be the federal government-with its insatiable appetite for regulatory
powers-and the trial lawyers, who will undoubtedly have a field day.
Secretary Herman's "national dialogue" should be brief and to the point.
The answer is "No."

        John Nowacki is deputy director of the Free Congress Foundation's Center
for Law and Democracy. For media inquiries, contact Robert McFarland
202.546.3000 / rmcfarland at freecongress.org For other questions or comments,

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