Labor Secretary Herman Withdraws OSHA Plan

(January 6, 2000) U.S. Secretary of Labor Alexis Herman stated that OSHA is withdrawing is advisory opinion requiring the application of OSHA workplace rules to home teleworkers. She also called for a "national dialogue" on the subject.

Secretary Herman wrote in a statement released late on Wednesday, January 5, that "OSHA is withdrawing the letter today." However, she did state explain what she meant by "withdrawing". Moreover, she stated that she is still examining the issue.

On November 15, 1999 the Occupational Safety and Health Administration issued an advisory opinion which asserted that "The OSH Act applies to work performed by an employee in any workplace within the United States, including a workplace located in the employee's home."

When the Department of Labor publicized the opinion this week it immediately encountered intense criticism from home workers, employers, high tech companies, and groups concerned with reducing traffic congestion. House Republican leaders vowed to reverse the opinion in an appropriations bill if the Clinton administration did not do so first.

Alexis Herman

Sec. Herman added: "I will ask the National Economic Council to convene an interagency working group, including the Department of Commerce, the Small Business Administration and others, to examine the broad social and economic effects of telecommuting. As Secretary of Labor, I remain committed to policies that both strengthen families and protect workers on the job."

Herman also referred to the intense opposition to the opinion as "widespread confusion".

A spokesman for Rep. Frank Wolf (R-VA), who lead the opposition in the House, stated that he "is very encouraged -- a step in the right direction."

"He is going to monitor the situation," said Rosanne Dupras, press secretary to Rep. Wolf. "If it is obvious that they are not going to roll back the policy ... then he is going to move a legislative proposal."

Typically, debates in Congress over OSHA policies break down along party lines. However, Dupras told Tech Law Journal that this "is not a partisan, Republican versus Democrat issue."

Rep. Bill Goodling (R-PA), Chairman of the Education and Workforce Committee, released a statement: "I commend the Secretary of Labor for doing the right thing. The action taken by lower-level individuals at OSHA was apparently done without the Secretary's knowledge. As I've expressed previously, Alexis Herman is a rational, perceptive individual, and her willingness today to use her authority is in the best interests of the American workforce."

Rep. Dick Armey also responded to Herman's suggestion that there be a "national dialogue" on the subject. "Based on the overwhelming outrage these regulations sparked, I'd say this will be a short, one-sided conversation," Rep. Armey wrote in his Majority Leader web site.

Opponents of the advisory opinion were pleased with the withdrawal. "We commend Secretary Herman for her decision to withdraw the advisory opinion on regulating home workplace conditions," said Harris Miller, President of the Information Technology Association of America (ITAA). "If the Secretary is intent on pursuing this matter, we urge her to include the IT industry in any dialogue on the topic."

The Chamber of Commerce also reacted favorably. "Twenty million American telecommuters can work without fear of intrusive government regulation or employer inspections," said Bruce Josten, EVP of the Chamber. "The Labor Department made the right choice in the end by reversing their earlier interpretation that employers were responsible for safety regulations in workers’ private homes."

However, the National Association of Manufacturers was more cautious. "If OSHA and the Department of Labor are actually rescinding their interpretation of health and safety rules for home work sites, we are delighted. But if they are just ‘withdrawing the letter,’ but sticking to the interpretation, the confusion remains," said NAM VP Patrick Cleary.

"Specifically, the Department’s intimation that the interpretation letter still applies to the individual employer who initially asked for guidance leaves the rest of the employer community wondering where they stand," wrote Cleary in a statement release late on January 5.

Sec. Herman's January 5 statement said that while the advisory opinion was withdrawn, "this employer has received the guidance he needs". OSHA then followed up Sec. Herman's statement with a letter on January 6 to the company which requested the advisory opinion, stating that "We are hereby withdrawing our letter to you ..."