In the wake of the COVID-19 pandemic, Australian employees are being directed or encouraged to work from home in order to assist with efforts to slow the spread of the virus and “flatten the curve”. Whilst this is sound advice from a public health emergency standpoint, having employees work from home brings with it new challenges and concerns that must be taken into consideration and addressed in order for employers and employees to abide by their legal obligations to each other and to their clients or customers.
Is working from home practical?
Whether or not working from home is a practical measure that will work for your business and employees will largely depend on the nature of your workplace and the work performed there, the facilities (physical and technological) that are available to employees to enable them to work remotely and the ability for employees to work safely in their homes. In some circumstances, working from home may not be suitable so other measures such as implementing social distancing arrangements within physical workspace environments may need to be considered.
Legal Implications for working from home
In terms of legal considerations, it is important that employers understand that when working from home, employees are still covered under the Work Health and Safety Act 2011 (Cth) and other similar state-based legislative enactments. This means that employers have an obligation to make sure that the health and safety of their employees are maintained even when those employees are working remotely. In this respect, employers should take reasonable steps to ensure that an employee’s home work area (or other remote working space) meets workplace health and safety requirements. This should involve considering factors such as the physical environment and risks associated with slips and falls, workstation ergonomics, electrical safety and lighting. In normal times, employers should be conducting inspections and assessments of home workspaces to ensure any workplace health and safety issues are identified and addressed appropriately. This may not always be possible or practical, particularly due to the rapid spread of coronavirus COVID-19 and the social isolation rules that must be adhered to, so in these instances employees will benefit from some written guidelines for employees to help them self-check their home workplace for safety, coupled with regular and open communication with their employers regarding remote working practices.
There are a number of useful checklists employers can refer to when addressing the considerations involved in planning for short term working from home arrangements:
“Working from Home checklist” developed by Comcare (the Australian Government’s work health and safety and workers’ compensation authority) comcare.gov.au/safe-healthy-work
“The Safework NSW Checklist” safework.nsw.gov.au
It is also important that employers put in place work from home policies (or evaluate existing work from home policies) that form part of the employer’s standard suite of HR policies for employees. In light of the implications that COVID-19 poses for employers and employers, work from home policies should be robust and tailored to address issues such as supervision of remote work, productivity concerns, communication tools, privacy and confidentiality considerations and data security standards and protocols.
We also recommend employers take this opportunity to review their existing worker’s compensation, public liability and professional indemnity insurance policies to gaps regarding employees working remotely. An example here would be where an employee who is working from home is seeing clients at home – this could have implications for public liability coverage. In addition, if the employer has supplied the employee with expensive equipment to facilitate the work from home arrangements, the employer should check that their general property insurance policy covers business equipment, regardless of its location.
Whist work from home arrangements can be beneficial for both employers and employees and may be necessary in these difficult times, this article highlights a number of considerations that must be taken into account when putting in a place remote working arrangements. The potential long term implications of COVID-19 may mean employees will be working from home for extended periods of time and therefore it is important that employers give proper thought to the management of these employees. The team at Aspect Legal is well placed to provide advice to clients in relation to remote working arrangements and considerations resulting from the COVID-19 outbreak. Please do not hesitate to contact us for assistance.
Don’t hesitate to contact our legal team if you have any questions or any other legal questions that are arising. Our legal team is highly experienced in all of these areas, and are ready to help.
Other relevant articles:
- Coronavirus: Implications on commercial contracts and force majeure clauses
- COVID19 and Hurdles to Stand Downs
- Coronavirus Employment Law Update – Leave and Stand Downs – Aspect Legal
- Coronavirus: Workplace Health and Safety Considerations
Relevant Podcast Episode:
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