OSHA: To Regulate Or Not To Regulate

Home Offices Will Not Be Subject To Federal Safety Regulations

By Anne E. Denecke

After a storm of national controversy, the federal Occupational Safety and Health Administration ("OSHA") has reported that it will not subject "home offices" to safety regulations as previously announced. OSHA's initial plan to monitor home offices met with sharp criticism on the basis that the proposed regulations would be difficult to enforce and would go far beyond OSHA's role of overseeing workplace health and safety issues.

OSHA also states that it "does not expect employers to inspect the home offices of their employees," and that upon receipt of an employee complaint about a home office, OSHA may "informally" notify the employer of the complaint " but will not follow up with the employer or the employee." OSHA has made it clear, however, that it reserves the right to inspect home-based offices upon receipt of a complaint indicating the existence of a health or safety violation that threatens physical harm or poses an imminent danger.

The ergonomics standards proposed by the federal Occupational Safety and Health Administration ("OSHA") will place a significant burden on covered employers who employ individuals to work in "manufacturing jobs" or "manual handling jobs." The proposed standards also will apply to an employee who reports to his/her employer that his/her job caused a "musculoskeletal disorder" ("MSD").

The proposed standards define an MSD as (a) "an OSHA recordable MSD," or a disorder that would be recordable if the employer were required to keep OSHA injury and illness records; and (b) the disorder is such that (i) "the physical work activities and conditions in the job are reasonably likely to cause or contribute to the type of MSD reported and (ii) these activities and conditions are a core element of the job and/or make up a significant amount of the employee's worktime." In other words, the proposal is "job specific" rather than employer or site specific.

All covered employers would be required to implement the first two steps of the six-step ergonomics program created by the standard, including "management leadership and employee participation" and "hazard information and reporting." When an employee reports an MSD, the employer also would be required to implement the remaining four steps: "job hazard analysis and control;""training;""MSD management" and "program evaluation."

The required "management leadership and employee participation" requires a covered employer to "demonstrate leadership of [its] ergonomics program," and to create "ways" [for employees] to report the signs and symptoms of an MSD. In addition, employees must be involved in developing, implementing and evaluating each element of the program. The "hazard information and reporting" element of the standard requires employers to "evaluate employees' reports of MSD signs and symptoms to determine whether a covered MSD has occurred," and to "periodically provide information to employees that explains how to identify and report MSD signs and symptoms."

The proposed standard is more than 320 pages and is expected to affect nearly 2 million employers. The proposal comes on the heels of OSHA's increased enforcement activity in the area of ergonomics, during which more than 550 citations have been issued to employers for ergonomic "violations." These citations generally are based on OSHA's "general duty clause" that requires employers to provide a work-place free from recognised hazards that cause or may cause serious physical harm. OSHA has invited written comments on the proposal and will be holding hearings on the matter in Portland, Oregon March 21-31, 2000.

Anne E. Denecke in the Portland office of Davis Wright Tremaine LLP is available to answer questions regarding the proposed ergonomics regulations or other OSHA-related questions. Anne can be reached at (503) 241-2300 or [email protected].

Regulations governing the Oregon Family Leave Act ("OFLA") recently underwent significant revision by the Oregon Bureau of Labour & Industries ("OBLI"). The more far-reaching revisions include:

• Addition of "same sex" domestic partners to the definition of "family member."
• Allowing eligible employees to take parental leave in separate blocks of time rather than over a continuous period for adoption or foster care placement.
• Restricting eligibility for leave for an employee to care for his/her family member with a "serious health condition" who resides in a long term care facility to time spent

1. during transition periods spent moving the family member from one home or facility to another (including the time to make such arrangements);
2. providing transportation to or from the home or facility; and
3. other assistance that the employee is required to render to obtain care by a physician.

• Allowing employers to temporarily transfer employees to a different job while such employees are recovering from a serious health condition, only under limited circumstances.
• Revising employee eligibility requirements to include both paid and unpaid time on the employer's payroll for purposes of meeting the requirement of having been employed for the 180-day period immediately preceding the request for leave.
• Requiring employees to take the full 12 weeks of parental leave prior to being eligible for an additional 12 weeks of sick child leave.

Although the revisions were designed to clarify the OFLA, some of the changes are confusing and may be difficult to interpret. Employers with questions concerning any of these changes should contact Carol Bernick or Anne Denecke in DWT's Portland office at (503) 241-2300.

This Employment Law Advisory Bulletin is a publication of the law firm of Davis Wright Tremaine and is prepared by its Employment Law Department, Mary E. Drobka, Chair. Our purpose in publishing this Employment Law Advisory Bulletin is to inform our clients and friends of recent legal developments in labour and employment relations law. It is not intended, nor should it be used, as a substitute for specific legal advice since legal counsel may be given only in response to inquiries regarding particular factual situations.