Working From Home – Implications For Employees And Employers

Working From Home – Implications For Employees And Employers

As the full impact of COVID-19 starts to become apparent for the Australian economy a new response has begun to emerge, with employers actively considering or requiring employees to work from home. Just this week, NAB evacuated its Melbourne head office in Docklands following a staff member testing positive to the virus, and Telstra has required all non-essential and non-call centre staff to work from home. Companies are also limiting or banning work-based travel and staff meetings in response to the crisis.

While working from home is not suitable for all job types, many office workers, particularly in large offices with many employees, it could be considered an appropriate response in enforcing the social distancing measures which government leaders and health authorities are calling for.

Home based work can have significant benefits for both employees and employers. And, undoubtedly, it is an effective mechanism for minimising transmission of the coronavirus. However, there are also potentially significant implications for both employees and employers in the event that something goes wrong.

To understand this, it’s important to first understand the principles of employment law and employer responsibilities. Under state workplace health and safety laws in Australia, a duty of care is imposed on “persons in control of a business or undertaking” (PCBUs). In the legislative context, a PCBU can be the employer (company) or employer’s representatives (the board, executives, senior managers and others with supervisory and work-place decision-making responsibilities). This duty of care extends beyond the physical premises of the business and applies anywhere an employee is performing activities which are reasonable, incidental to and within the terms of their employment. By definition, that includes where an employee is working from home by either permission or expectation of the employer.

Some questions that logically (and legally) arise from this definition include:

• What are an employer’s obligations to ensure that home-based work is undertaken safely and in a safe environment?
• How can an employer ensure the safety of a home-based work environment?
• What happens if an employee is injured while undertaking home-based work?

In answer to the first question, an employer’s obligations are essentially the same as if the work were being conducted at the employer’s premises. There are obvious requirements, such as ensuring that an employee’s home office arrangements are ergonomically safe and appropriate and that slip and trip hazards are absent, first aid kits are available and so forth. However, an employer’s obligations are likely to be far wider in scope and will include ensuring appropriate lighting, that work areas are appropriately ventilated, that adequate heating and cooling is in place and that the home workplace is fitted with smoke detectors and fire alarms, and includes a safe means of evacuation in the event of a fire.

Which then leads to the second question: how can an employer ensure the safety of a home-based work environment? The simplest answer is that employers need to take active responsibility to ensure employee safety. For some companies, where working from home is an established practice, this may be achieved by having an appropriately qualified person, either a safety manager or external service provider, undertake a physical assessment of the employee’s home-based work space. Certainly this is the most thorough means of demonstrating that workplace health and safety obligations are being met.

However, in many instances, this is simply not a feasible approach, for example if the employee is working remotely from the employer’s premises. Similarly, in the example such as Telstra’s response to the coronavirus, as outlined in the introduction, it would be neither practicable or feasible to undertake a rapid assessment of the appropriateness of each employee’s home office set up in the time frame required.

If this is the case, it is likely that the best solution will be for the employer to provide a standardised checklist to employees working from home. Ideally, that check list will form part of a pre-existing corporate policy which covers working from home. Either way, this is the only practical way to achieve the requisite outcome and build sound evidence and verification supporting workplace safety.

So then, what happens if an employee is injured when undertaking employment activity from a home-based office? The simple answer is that the employer is likely to be liable. And there is legal precedent for this being the case, with employees having successfully sued for compensation in relation to injuries incurred while working from home – one specific case in 2011 related to a Telstra employee who twice fell when working from home, having logged on to her computer before the incidents occurred.

If you’re working from home during the coronavirus outbreak, who’s responsible for your safety? https://t.co/wjtYZkSHo0 pic.twitter.com/HN7Xcd63G5

— Community Legal QLD (@CLC_Qld) March 18, 2020

While it might seem that incidents that occur while a home-based worker is taking a lunch break, cooking in their own kitchen or taking some sunshine in their garden are personal activities undertaken in one’s own home, if they occur during work hours it is most likely they will considered to have occurred or arisen out of the course of employment and will attract workers compensation.

Of course, none of this belies the fact that working from home can provide great benefits for both employees and employers, in the right circumstances. And in the current environment while authorities are trying to limit the spread of COVID-19, it makes sense to explore this option if it’s available. However, both employers and employees have a responsibility to ensure that working from home is undertaken safely.

There are six simple steps that can be put in place to assist with this:

1. Determine whether it is appropriate for the employee to work from home  

   • Assess whether the required tasks can be carried out safely away from the business premises and whether the quality of work will be affected.

2. Inspect the home work place to identify any health and safety risks

   • This should be undertaken before home work begins and refreshed on a regular (6-12 monthly) basis. An employee self-check verification using a formal, employer supplied, process may be appropriate.

3. Manage identified risks

   • These could include ergonomic risks; slip, trip and fall risks; fire safety; heating, cooling and ventilation; electrical safety; or manual handling risks.

4. Ensure employee training in relation to corporate health and safety policies and operating procedures is up to date and relevant to the working environment and nature of work.
5. Provide and maintain safe equipment, including computers, tools and the like.
6. Ensure the employee completes a six monthly workplace inspection which is documented and provided to the employer