The COVID-19 pandemic has caused lots of changes in society (social distancing, wearing masks, singing the “Happy Birthday” song while washing your hands, etc.). One undeniable change has been the substantial increase in the number of employees teleworking (i.e., working remotely from home). The U.S. Bureau of Labor Statistics reports that just under 33% of workers worked from home in June because of the coronavirus outbreak. Moreover, there appears to be a growing belief that teleworking may become the new normal for many employees even after COVID-19.
With that in mind – 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 short answer is it depends on the type of remote work.
Under OSHA’s General Duty Clause, every employer has a general duty to “… furnish to each of his 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 your employees are working. For home office situations where the employee performs office work activities, such as filing, computer research or work, reading, writing, etc., employers have little responsibility. In fact, OSHA (the federal agency that enforces the OSH Act) has issued guidance stating:
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. The inspection, however, 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.
Additionally, 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.
Stated another way, 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 have 1) 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. Below are some recommended best practices:
A number of legal and practical issues arise when workers telecommute, especially in the COVID-19 world. So be sure to involve senior management and an appropriate employment law attorney when making decisions and implementing best practices in addressing the issues.
For more information or questions, please contact your relationship partner or one of the authors listed below. Foley’s here to help our clients effectively address the short- and long-term impacts on their business interests, operations, and objectives. Foley provides insights and strategies across multiple industries and disciplines to provide timely perspective on the wide range of legal and business challenges that companies face conducting business while dealing with the impact of the coronavirus. to stay up to date and ahead of the curve with our key publications addressing today’s challenges and tomorrow’s opportunities. To receive this content directly in your inbox, and submit the form.