Do State OSHA Regulations Apply To Homeowners?[dagger]

FDCC Quarterly, Winter 2004 by Brady, Michael J, Nadeau, Elisa R

I.

INTRODUCTION

Do state Occupational Safety and Health Act (OSHA) regulations apply to homeowners? Until recently, the answer in California was "yes." But then, on July 7, 2003, the California Supreme Court reversed a Court of Appeal decision and held that a homeowner who hires a laborer for work that the "average household member" could not perform on his own is not subject to California OSHA.

In most states, the question of whether the expansive OSHA regulations apply to homeowners remains open. A minority of states have enacted OSHA laws that effectively exclude homeowners, and another minority of states have issued opinions refusing to apply OSHA to homeowners not engaged in business at their homes. But, for the remaining states, as the California Court of Appeal decision in Fernandez v. Lawson1 proves, homeowners who hire laborers for non-commercial purposes may be on the hook for OSHA compliance.

II.

OSHA BACKGROUND

Federal OSHA, enacted in 1970, encourages states to formulate and enforce their own OSHA laws and regulations.2 Twenty-six states have followed suit.3 Although Wisconsin has enacted a "Safe-Place Statute," the program is not a federally approved and sponsored OSHA program.4 Consistent with its statement of purpose,5 Federal OSHA regulates worker safety in places of employment. Common sense would dictate that OSHA would reach businesses, not homes. Further, OSHA regulations are dense and technical, often requiring employers to seek compliance assistance. For example, take a quick glance at the Federal OSHA regulations regarding fixed stairs:

Where fixed stairs are required. Fixed stairs shall be provided for access from one structure level to another where operations necessitate regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. . . . Spiral stairways shall not be permitted except for special limited usage and secondary access situations where it is not practical to provide a conventional stairway. Winding stairways may be installed on tanks and similar round structures where the diameter of the structure is not less than five (5) feet.6

Federal OSHA itself does not apply to homeowners because "employer" is defined as one who engages in "business affecting commerce."7 OSHA laws in Connecticut, New York and New Jersey only apply to public sector employment. However, most state OSHA laws do not include this limitation.

III.

FERNANDEZ V. LAWSON: HOW OSHA CAME TO BE APPLIED TO HOMEOWNERS

In Fernandez v. Lawson,8 a homeowner in Glendora, California hired a tree-trimming service to trim his fifty-foot palm tree. The service had not been used before. Eliseo Lascano had personally solicited the defendant homeowner by knocking on his door and declaring himself an expert tree trimmer. Lascano himself did not perform the tree-trimming for the homeowner, instead dispatching his employee Miguel Fernandez to perform the work. Fernandez fell from the palm tree, sustained severe injuries, and sued the homeowner rather than his then-defunct employer. Because the employer did not hold the valid license required for trimming trees of over fifteen feet, under a presumption in the California Labor Code the homeowner could not claim that Fernandez was an independent contractor rather than an employee.9 As the "employer" of Fernandez, the question for the homeowner was whether OSHA applied to this transaction.

The appellate court decided the "household domestic service" exclusion in California's version of OSHA did not apply to trimming a fifty-foot tree because it involved complicated procedures and machinery. Further, the court fashioned a new test for determining when a homeowner would be subject to OSHA: whenever the task involved could not be performed by the average household member, the activity is not a household domestic service and is subject to OSHA.

A. Implications of Applying OSHA to Homeowners

To comply with CaI OSHA regarding the trimming of a tree at least fifteen feet high, a homeowner would need to maintain an accident prevention program, inspect equipment before the work begins, train employees to identify poisonous plants, visually inspect the tree before the climbing begins to ascertain the safest means of entry, "crotch" the climbing line, etc.10

This test spawns additional problems. Who is the average household member, an elderly man or youthful Olympian? What tasks is the average household member capable of? If OSHA applies, how does the homeowner comply? Would the homeowner's insurance policy apply to claims for Cal OSHA violations?

The holding had widespread implications. It is common knowledge that homeowners hire others to perform household repair and maintenance and would never dream that OSHA regulations could apply to such transactions. This practice was common in the Lawsons' neighborhood: Fernandez himself had trimmed three tall palm trees in the two weeks before the accident spurring his lawsuit. Of course, assuming the presumption against hirers of unlicensed contractors does not apply, the homeowner might still be able to avoid OSHA application if the laborer is an independent contractor instead of an employee. In California, in order to avoid employer status, the homeowner needs to prove that the laborer has his own independently established business and maintained the right to control the work, amongst other factors.11 But, if the homeowner cannot establish the laborer as an independent contractor, OSHA would apply to tasks outside the domain of the average household member.