Do State OSHA Regulations Apply To Homeowners?[dagger]

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

In these states, as long as the homeowner is not operating a business out of his home, OSHA would not apply. Questions could still arise, especially given the rising popularity of telecommuting and home offices, of OSHA application to homeowners. For instance, in Wisconsin, a person with a home daycare center who hires a tree trimmer may still be liable for injuries due to OSHA violations since "a business is carried on" in the home.23

B. "Private Residence" Restrictions

Alaska, Hawaii, North Carolina, Oregon, Puerto Rico, and the Virgin Islands restrict OSHA application to businesses by excluding work performed at residences. Depending on the wording, these exclusions may apply even if the homeowner is operating a business out of the home. Alaska's OSHA is the most protective, defining "employee" as "a person who works for an employer, but not in a place used primarily as a personal residence."24 Thus, even if there is a side-business the homeowner could argue that OSHA would not apply, especially if the injury-producing service did not relate to the business. Oregon's Safe Employment Act specifies that the term "employees" does not include "nonsubject workers employed in or about a private home."25

However, some of the private residence exclusions also include the troublesome "domestic service" phrasing like California's OSHA. Hawaii's OSHA excludes domestic service "in or about a private home" in its definition of employment.26 North Carolina defines "employer" to exclude one who employs "domestic workers" in their "place of residence."27 Puerto Rico's OSHA states that the place of employment "shall not include the premises of private residences or dwellings where persons are employed in domestic services."28 Puerto Rico's OSHA also states that the term "employment" excludes domestic service.29 Finally, the Virgin Islands' OSHA states "the term 'employee' means any individual employed by an employer, but does not include an individual employed in domestic service in a private home."30 In these jurisdictions, an injured worker could still argue that OSHA applies because domestic service was not being performed.

C. "Domestic Services" Exclusion

The domestic services exclusion is the least protective type of exclusion applicable to homeowners in state OSHA laws. As described earlier, California is one example. New Mexico's OSHA law defines "employee" to exclude domestic employees.31 Arizona's OSHA definition of "employee" excludes those "engaged in household domestic labor."32 Tennessee's OSHA law applies to all employees except "domestic workers."33

VI.

OTHER STATE CASES CONSTRUING OSHAAs To HOMEOWNERS

Courts have confronted the issue of whether OSHA should apply to a homeowner in only eight states, including California, and have always refused to do so.

A. Washington

A Washington appellate court that considered whether OSHA can apply to homeowners held that homeowners "lack the knowledge, experience, ability, and 'means to provide expensive safety features' or effectively enforce safety standards."34 The Washington court refused to apply OSHA even in a case where the homeowner was a carpenter by trade. In Rogers v. Irving,35 a carpenter who built his own house and hired independent contractors for jobs outside his expertise was not an employer because he was a "homeowner who for his own personal benefit employs independent contractors to perform various jobs on the residence."36 The homeowner had "drafted plans for the home, cleared the land, and framed the house and garage himself."37 While working in the rain on the roof of the garage, the plaintiff "slipped on wet plywood and slid down the roof."38 In violation of Washington State's Industrial Safety and Health Act, neither the plaintiff nor any other person working on the roof used safety lines to prevent a fall. The Washington Court of Appeals wrote, "[h]omeowners, not being business enterprises, are typically ill-equipped to assume the duties that [the plaintiff's] interpretation of 'employer' would impose upon them."39