Do State OSHA Regulations Apply To Homeowners?[dagger]

Brady, Michael J

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.

Applying OSHA to homeowners would have an important impact on insurance. While most homeowners insurance policies do not provide coverage for worker's compensation, in California worker's compensation coverage is required in any comprehensive personal liability policy.12 But, it is much less likely that insurers provide such coverage for OSHA compliance, potentially leaving the homeowner subject to liability. If insurers were required to include such coverage, the requirement would only serve to deepen the insurance crisis brought on by poor economic conditions, 9/11, mold and other widespread, expensive tort claims.

IV.

CALIFORNIA SUPREME COURT DECISION

The California Court of Appeal's holding in Fernandez conflicted with another California Court of Appeal decision, Rosas v. Dishong,13 which held that CaI OSHA did not apply to household maintenance. In the face of this conflict, the California Supreme Court granted review.

On July 7, 2003, the California Supreme Court held that tree-trimming at a private residence, especially in a non-commercial setting, was a household domestic service and excluded from the purview of CaI OSHA. The court stated that historically, the term "household domestic service" has been construed broadly, as have other OSHA exclusions, such as federal government agencies, maritime workers, and railroad workers.

The California Supreme Court also concluded that the court of appeal's approach, qualifying an activity as a household domestic service only if an average member of the household has the skill and competence to undertake it, "creates massive uncertainty for a homeowner as to when OSHA would apply."14 The court stated, "[overwhelming public policy and practical considerations make it unlikely the Legislature intended [OSHA] to apply to a homeowner hiring a worker to perform tree trimming."15 It further stated that to apply OSHA in this case would violate "basic notions of fairness and notice."16

In light of the court's strong language, it is unlikely the state OSHA will ever apply to homeowners in California. Nonetheless, the court did not consider projects other than tree-trimming or projects for commercial purposes performed at a home, stating only, "[i]t is sufficient to note here that there is no indication Lawson wanted the palm tree trimmed for any commercial purpose."17

V.

IN SOME STATES STATUTORY LANGUAGE EXCLUDES HOMEOWNERS FROM OSHA

Some states have enacted a version of OSHA that excludes homeowners by including a "business" component in their "employer" or "workplace" definitions. Others have excluded from OSHA all work performed at a private residence. Other states, like California, exclude domestic service. Finally, Vermont excludes from the definition of "employee all laborers who work for an independent contractor."18

A. "Business or Commerce" Restrictions

State OSHA enactments least likely to apply to homeowners are those that mandate application only to employers who are conducting "business or commerce." In Wisconsin's Safe-Place Statute, workplace is defined as every place where "any industry, trade or business is carried on."19 In Utah, an employer under OSHA is defined to include "every person . . . having one or more workers . . . regularly employed in the same business, or in or about the same establishment, under any contract of hire."20 In Iowa, "employer" is defined as a person who is "engaged in a business . . . ."21 Finally, in Connecticut, under OSHA an "employee" means "any person engaged in service to an employer in a business of his employer."22

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

The court continued,

In the absence of an unambiguous indication from the Legislature that it intended to include home building and repair projects under [Washington Industrial Safety and Health Act], we hold that the definition of "employer" in RCW 49.17.020(3) does not include a homeowner contracting for work done on his personal residence.40

Thus, it appears that, in Washington, a homeowner will not be liable for any type of work done on his residence that does not comply with OSHA.

B. Minnesota

Minnesota has also refused to apply its state OSHA laws to homeowners, even if the work is being performed in connection with a commercial enterprise and the homeowner substantially controls the work. In Stenvik v. Constant41 the homeowner defendant was remodeling a house he owned. he intended to rent or sell the house, located next door to his own residence, and hired the plaintiff to help remodel it. The homeowner supplied the plaintiff with materials and tools for remodeling, including lumber, nails, power tools, and scaffolding. While remodeling the house, the plaintiff fell from a four-foot high scaffold onto a concrete slab. he died six months later. The Minnesota Court of Appeals admitted that "the plain language of [the definition of employer] provides little guidance on the applicability of OSHA to this case."42 It continued:

We agree with the former OSHA director and the trial court that OSHA was not intended to apply to this kind of situation. It is true that OSHA was intended to provide the broadest possible protections for employees . . . . It is also true that even employers with only one employee are bound by OSHA . . . . The consequences of holding that OSHA applies to [the defendant's] arrangement with [the plaintiff] would be dangerous. [The defendant] hired [the plaintiff] to do siding work in a manner no different than a lady who has hired a neighbor kid to mow the grass. If this court were to hold that OSHA applies, a chilling effect on the willingness to hire others to work would be created.43

Thus, in Stenvik, the work was not performed at the defendant's own dwelling. Yet, the court refused to apply OSHA despite an express employment contract, the defendant providing all supplies and materials, the defendant's direct payment to the plaintiff of a weekly salary, and furtherance of a commercial enterprise to sell or rent out the home.

C. Michigan

In Hottmann v. Hottmann44 the Michigan Court of Appeals held that OSHA does not apply to "do-it-yourself projects" and homeowners do not have to be familiar with OSHA. In that action the defendant's brother broke his arm while helping the defendant remodel his home by putting a new roof on the house and garage. The plaintiff alleged that the defendant negligently allowed him to work on the roof without following the safety requirements dictated by Michigan Occupational Safety and Health Act (MIOSHA). The court held that the plaintiff could not invoke MIOSHA because he was not paid and the act did not apply to homeowners.

The court recognized that the purpose of OSHA is to protect employees engaged in their employer's business:

[S]uch an interpretation is consistent with the Legislature's purpose in enacting the MIOSHA. The MIOSHA was designed to ensure that employers in business, industry, and government keep their employees' work sites free of recognized hazards. . . . Nothing in the language of the MIOSHA suggests that it should be applied to homeowners' do-it-yourself projects, nor is it reasonable to expect the average homeowner engaging in such a project to be familiar with and comply with the MIOSHA regulations.45

Since this case emphasized the fact that the plaintiff was not paid, a future case in which the plaintiff is paid might attempt to distinguish Hottman.

D. Wisconsin

Wisconsin is the only state to address whether an occupational safety statute might apply to a telecommuting homeowner. Again, Wisconsin does not have a federally approved OSHA program but has enacted the Safe-Place Statute. In Geiger v. Lawrence46 even though the defendant occasionally used his home for work purposes, the Wisconsin Court of Appeals refused to apply the Wisconsin's Safe-Place statute to the homeowner. However, there is still room in Wisconsin for a court to decide that a homeowner running a business entirely out of the home is subject to the statute.

In Geiger the plaintiff was working at the defendant's residence as a plumber. While carrying a laundry tub he slipped and fell on some ice on the sidewalk and strained his back. The plumber alleged that the defendant should have warned him about the ice. The plaintiff further alleged that because the defendant was an attorney who occasionally took legal work home from his office and met with clients in his home, the defendant's home was a place of employment under Wisconsin's Safe-Place statute.

Even though the Safe-Place statute defined a workplace as one where "industry, trade or business" is carried on and the homeowner occasionally worked out of the home, the court of appeals held that the defendant's home was not a place of employment. It stated, "[w]e agree with [the plaintiff] that the work that [defendant] engaged in at his home was related to his law practice. However, we are not persuaded that every infrequent business-related activity in the home subjects a homeowner to potential liability under the safe-place statute."47

Thus, it appears that a Wisconsin homeowner running a business out of the home may be liable under the Safe-Place statute.

E. New York

While not directly confronting the issue of whether OSHA can apply to homeowners, the court in Rimoldi v. Schanzer48 avoided OSHA when determining the liability of homeowners who were having an in-ground pool installed in their back yard. In Rimoldi the homeowners hired a contractor to install a pool and it required excavation. Neither the homeowners nor the contractor hired to install the pool obtained the necessary permit for the work. During the excavation, the rear yard patio collapsed on the contractor's employees who had been excavating beneath it.

Even though there was an issue of fact as to whether the homeowner directed and controlled the pool project, the court held that the plaintiffs' claims predicated on OSHA should be dismissed because "the decedents were not employees of [the homeowners] but rather were hired directly by the general contractor."49 The implication from Rimoldl is that a New York court may avoid applying OSHA to a homeowner, but certainly would not be required to do so, especially if the homeowner directly hired the injured laborer.

F. Oregon

Similarly, in George v. Myers,50 the Oregon Court of Appeals held that a property owner who was building a house for sale to the public was not negligent per se by violating Oregon's Safe Employment Act (OSEA) because the owner did not himself hire or supervise the injured employee. The defendant, a general contractor, owned property on which he was building a home for sale to the public. The defendant hired subcontractors to work on the house in areas outside of his own expertise. This included the plaintiff's employer, a framing subcontractor. Although the defendant checked in at the work site almost daily to confer with the framing subcontractor, he did not instruct the subcontractor or any of his employees about how the house was to be framed or other details of performance. While the subcontractor's employee, the plaintiff, was moving several heavy boards, he decided to move the entire bundle at once. As the plaintiff pried up the bundle, the crowbar he was using slipped and the plaintiff fell backwards off the third floor and landed twenty feet below.

In violation of OSEA, there was no fall protection of any kind at the construction site at the time of the plaintiff's fall, including personal protection devices, guardrails, or netting. The plaintiff argued that these OSEA violations constituted negligence per se. The Oregon court held that the defendant, as a general contractor or as an owner, was not an "employer" within the meaning of OSEA.

G. New Jersey

New Jersey has also refused to apply its OSHA law to homeowners. In Slack v. Whalen,51 the defendant-homeowners, using the plans prepared by an architect, obtained the building permits and financing required for the reconstruction of the home. They hired and paid the various contractors to build the house, and assumed the numerous administrative responsibilities required to coordinate the project. A subcontractor's employee, the plaintiff, was spackling the cathedral ceiling using the ladders and scaffolding provided by the subcontractor for the work and realized he could not reach the "uppermost part of the cathedral ceiling."52 In order to do so, the plaintiff climbed onto the rafters and, using a board that had been placed there by another of the subcontractor's employees, began spackling. The board broke and the plaintiff fell approximately ten feet to the floor. The court held the plaintiff to be an employee of a contractor because the "[d]efendant [ ]did not have a contractual arrangement with [the spackling subcontractor] or any other contractor requiring defendants to oversee either the performance of their work, or OSHA compliance, and defendants did not provide such oversight" of the work performed by the hired contractors.53

Even though the defendants, in building their own home, were acting as general contractors, the court held:

Given the nature of the risk, the lack of foreseeability ofthat risk, and the relationship between plaintiff and defendants, which in no way implicated worker-safety concerns or suggested that defendants had the capacity to control plaintiff's performance, we conclude, as a matter of "fairness and policy," that defendants had no legal duty to exercise reasonable care for plaintiff's safety at the worksite.54

This case again proves that other states have been unwilling to apply OSHA to defendant homeowners even when the defendants were involved and had expertise in the work being performed.

H. Iowa and Maryland

Published opinions in Iowa and Maryland imply that state OSHA laws do not apply to homeowners. In Lunde v. Winnebago Industries.55 the court held that Iowa's OSHA did not apply to a property owner because, by analogy, OSHA would not apply to a homeowner who hired a painter who in turn violated OSHA laws.

Similarly, in Fogle v. H & G Restaurant,56 the Maryland Court of Appeals, in assessing whether a Maryland OSHA ban on smoking in the workplace was constitutional, held that the ban did not invade homeowners' right to privacy because OSHA only applies to businesses, not homeowners. The court wrote that the Maryland OSHA statute only applied to employers who are engaged in commerce, industry, trade or other business in the state and employ at least one employee in that business and that the statute could not be reasonably read to apply to homeowners.

VIII.

CONCLUSION

While cases in a handful of states suggest that OSHA does not apply to homeowners, and the recent California Supreme Court decision in Fernandez v. Lawson reinforces this result, many state courts have not yet addressed the issue. Further, in states such as New York, Iowa, and Maryland, courts have implied but not explicitly stated that OSHA does not apply to homeowners. In any case, homeowners should be cautioned to hire contractors with valid licenses and to refrain from exercising control over the work to be performed, if possible.

[dagger] Submitted by the authors on behalf of the FDCC Insurance Coverage Section.

1 71 P.3d 779 (Cal. 2003).

2 29 U.S.C.S., § 667.

3 These jurisdictions are: Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Island, Virginia, Washington and Wyoming. (Federal OSHA website www.osha.gov/fso/osp/index.html.)

4 Geiger v. Milwaukee Guardian Ins. Co., 524 N.W.2d 909 (Wis. Ct. App. 1994); Federal OSHA website www.osha.gov/fso/osp/index.html.

5 "The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments. . . . The Congress declares it to be its purpose . . . to assure . . . every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources. . . by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions. . ." 29 U.S.C.S. § 651(a)-(b).

6 29C.F.R. § 1910.24(b).

7 29 U.S.C.A. § 652(5).

8 Fernandez v. Lawson, 119 Cal. Rptr 2d 767 (Ct. App. 2002) rev'd, 71 P.3d 779 (Cal. 2003).

9 CAL LAB. CODE § 2750.5 (West 2003).

10 8 COL. CODE REGS., §§ 3421 & 3427 (2003).

11 CAL. LAB. CODE § 2750.5 (West 2003).

12 CAL. INS. CODE § 11590 (West 2003).

13 79 Cal. Rptr. 2d 339 (Ct. App. 1998).

14 Fernandez v. Lawson, 71 P.3d 779, 783 (Cal. 2003).

15 Id. at 782.

16 Id.

17 Id.

18 VT. STAT. ANN. tit. 21 § 203 (Michie 2003).

19 WIS. STAT. ANN. § 101.01(11) (West 2003).

20 UTAH CODE ANN. § 34A-6-103 (2003).

21 IOWA CODE ANN. § 88.3(5) (West 2003).

22 CONN. GEN. STAT. ANN. § 31-367 (West 2003) (emphasis added).

23 WIS. STAT. ANN. § 101.01(2)(f) (West 2003). See also note 19 supra and accompanying text.

24 ALASKA STAT. § 18.60.105(1) (2002).

25 OR. REV. STAT. § 654.005(8)(a) (2002).

26 HAW. REV. STAT. § 396-3 (2003).

27 N.C. GEN. STAT. Ann. § 95-127 (2002).

28 P.R. LAWS ANN. § 361(a) (2003).

29 Id. § 361(b).

30 24 V.I. CODE ANN. § 32(6) (2003).

31 N. M. STAT. ANN. § 50-9-3 (2003).

32 ARIZ. REV. STAT. ANN. § 23-401 (West 2003).

33 TENN. CODE ANN. § 50-3-104 (2003).

34 Smith v. Myers, 950 P.2d 1018, 1021-22 (Wash. Ct. App. 1998).

35 933 P.2d 1060 (Wash. Ct. App. 1997).

36 Id. at 1063.

37 Id. at 1061.

38 Id.

39 Id. at 1064.

40 Id.

41 502 N.W.2d 416 (Minn. Ct. App. 1993).

42 Id. at 419.

43 Mat 420.

44 572 N.W.2d 259 (Mich. Ct. App. 1997).

45 W. at 263.

46 524 N.W.2d 909 (Wis. Ct. App. 1994).

47 Id. at 910.

48 537 N.Y.S.2d 839 (App. Div. 1989).

49 Id. at 843.

50 10 P.3d 265 (Or. Ct. App. 2000).

51 742 A.2d 1017 (N.J. Super. Ct. App. Div. 2000).

52 Id. at 1019.

53 Id.

54 Id. at 1021.

55 299 N.W.2d 473 (Iowa 1980).

56 654 A.2d 449 (Md. 1995).

Michael J. Brady is a member of the Redwood City, California firm of Ropers, Majeski, Kohn & Bentley. He received his undergraduate degree from Stanford and his J.D. from the Harvard School of Law. Mr. Brady supervises his firm s appellate and insurance coverage departments. A frequent author and lecturer, he is past president of the Northern California Association of Defense Counsel and California Academy of Appellate Lawyers. Mr. Brady is also a member of the Defense Research Institute, International Association of Defense Counsel and Federation of Defense & Corporate Counsel where he serves as chair of the Insurance Coverage Section. He is also a member of the FDCC Litigation Management College.

Elisa Nadeau is an associate at the Redwood City, California firm of Ropers, Majeski, Kohn & Bentley. She received her B.A. from the University of California, Berkley in 1994 and her J.D. from the University of California, Hastings College of Law in 1998. Ms. Nadeau joined Ropers, Majeski in 2001 and practices appellate law.

Copyright Federation of Defense & Corporate Counsel, Inc. Winter 2004
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