Telecommuters and Cell Phones: New Reasons for Concern When Employees Work Away from the Office
 
March 1, 2000
 

The Occupational Safety and Health Administration (OSHA) and the results of recent cellular telephone use studies have both recently given employers more reasons to be concerned about work their employees are doing away from their "traditional" job-sites.

Telecommuters

OSHA's on-again-off-again policy on employees working at home (i.e. telecommuters) has left employers holding their collective breath wondering what OSHA's final position will be, or more importantly, what the outcome of litigation and a flurry of congressional proposals in this area will yield. In November 1999, OSHA issued an advice letter in which the agency indicated that employers may be responsible for conducting inspections of their telecommuters' homes and may be held accountable if unsafe conditions in the home led to an illness or injury while an employee was telecommuting. 

Although that letter was withdrawn in early January 2000, and despite assurances given to a congressional sub-committee by Charles Jeffress, the Assistant Labor Secretary in Charge of OSHA, that the OSH Act does not require inspections of a telecommuter's home office, both Mr. Jeffress and Labor Secretary Alexis Herman have recently stressed that: 

• all employers remain responsible for ensuring that all employees work in safe and healthful conditions 
• employers who are required to keep records of work-related injuries and illnesses will have to report any arguably work-related injuries that occur while an employee is telecommuting  
• OSHA will perform inspections of "hazardous" home workplaces where employees are suspected of engaging in home "manufacturing" and/or where OSHA suspects that employers are providing "hazardous" materials or equipment for use by employees working at home

The only certainty at this time is that employers are uncertain of what is expected of them. It will be necessary, therefore, to watch this issue develop. In the meantime, make sure that any injury and illness reports you are required to produce are complete and accurate, and steer clear of providing any "hazardous" material to employees for their work-at-home use or of asking employees to perform home "manufacturing." Further, employers should know the workers' compensation law for the jurisdictions in which they have job sites. It is possible that an employer may be liable to pay workers' compensation benefits to an employee who suffers an illness or injury while telecommuting.

Cellular Telephones 

Recently published results of studies have led to renewed concern over the safety of long-term exposure to the radiation emitted by the antennas on hand-held cellular telephones. The vast majority of scientific studies thus far have found no health risks. However, no studies have been able to completely rule out such a possible link. Further, a small number of studies, including some sponsored by the industry itself, have found there may be risks for frequent cellular telephone users over the long term.

Employers may wish to exercise some caution even though OSHA only has an advisory standard, which is the same standard used to test telephones for compliance with radiation emission standards (i.e. all modern cellular telephones should already comply with the OSHA advisory standard). Accordingly, the only likely liability exposure would appear to be a possible workers' compensation claim from an employee who can establish that job-related cellular telephone use contributed to an illness in some way. However, in order to effectively manage any potential risks, it may be worth considering issuing a statement to your employees explaining your cellular telephone use policy, outlining the potential risks, and explaining ways those risks can be reduced.

For more information please call Timothy M. Singhel at 1-888-688-8500.