September 20, 2022

Can OSHA Regulate the Metaverse?

Holland & Knight Masters of the Metaverse Blog
Timothy Taylor
Masters of the Metaverse Blog

We're supposed to stand more and sit less. That's good advice for your health, but maybe not always when you're wearing a virtual reality (VR) headset, which present certain workplace health and safety issues.

The most obvious hazard is getting too carried away and, e.g., crashing through your television set. But there are other potential risks. Some are short-term such as headaches, neck aches, nausea and eye discomfort. Others may be longer term, including concerns about myopia brought on by the disconnect between a screen inches from your eyes yet depicting virtual objects miles away. Very, very smart people are working on that one.

Can the Occupational Safety and Health Administration (OSHA) regulate these potential risks? Perhaps some more than others.

The principal risk is one we're all aware of: disorientation followed by a fall or a crash. OSHA can likely regulate this hazard under the "general-duty clause," a broad provision of law that requires employers to maintain a workplace free of serious recognized hazards. Where VR sets are used, employers need to make sure that employees are secure in their space and can't hurt themselves or others.

When it comes to problems brought on by wearing the headset, such as headaches, neck pain or back pain, that is arguably an ergonomics issue and thus less susceptible to OSHA regulation. OSHA attempted to require attention to ergonomics in the workplace at the end of the Clinton Administration, but that effort was reversed by Congress. Ever since, OSHA has relied on the general-duty clause for ergonomic hazards. Conceivably, VR headsets that fit poorly, are too heavy or are worn too long could become a hazard under the general-duty clause, but an official OSHA standard on the subject could be legally difficult.

How about other common complaints, like eye strain, headaches, dizziness or nausea? The general-duty clause only covers hazards likely to result in death (not applicable) or "serious physical harm." The kinds of complaints described above may not meet that threshold, especially if they're not recurring or require medical treatment. However, if the complaints continue, if they result in lost work time or if they are indicators for more serious health problems caused or exacerbated by too much VR time, then OSHA might be able to step in under the general-duty clause.

Consider, too, VR headsets' effects on employees' eyes and ears. OSHA does have a standard requiring employers to protect employees from certain levels of noise exposure, regardless of resultant harm. And there's also the potential claim that VR time resulted in damage to eyes or ears, though it may be difficult for OSHA – or an employee in a civil suit – to prove that any consequent diminishment in hearing or vision was brought on by extended use of a VR headset, when the earphone market is growing 20 percent per year and the average American adult stares at screens for at least 11 hours per day.

Finally, OSHA recordkeeping requirements might apply to VR injuries and illnesses. Every employer must report workplace deaths and certain extremely serious injuries and illnesses. This includes injuries and illnesses that happen while working from home. Many low-risk industries are exempt from recording other injuries and illnesses – though industries of every kind are embracing VR and other metaverse technologies.

Holland & Knight's Metaverse Strategy Team includes experienced attorneys who are recognized thought leaders in the field. The Metaverse Strategy Team represents dozens of clients, including Fortune 500 companies to technology startups, as these businesses navigate the metaverse landscape.

Related Insights