Embracing the new ‘normal’: The legalities around working from home
O*NO! Following the COVID-19 pandemic and lockdowns, working from home has transitioned from a temporary measure to the new standard for some of us. This could be due to personal circumstances, interstate living, or just a preference to work remotely. So what does this mean for the you as an employer? This blog is all about the do’s and don’ts of allowing employees to work from home.
Why some employees may work from home?
Before making any decisions, or policies, allowing employees to work from home, it is useful to consider the benefits it affords your business.
Firstly, there are certain employees for whom flexible work conditions may be the only way they can be employed, such as employees that reside interstate.
Secondly, there are also certain people who may be legally entitled to such work conditions. According to the National Employment Standards (NES), this entitlement applies to those that are parents or carers of young children, are a primary carer, are over 55 years of age, have a disability, or providing to care to a member of their immediate family or household experiencing, or are themselves experiencing family violence. However, it must be noted that a request under the NES can only be made by employees if they have been in your employment for at least 12 months, and under certain conditions you may refuse such a request.
Thirdly, it allows employees to work with greater flexibility and agility. Without having to be tied down to a specific location, employees are able to, and more willing to, work differing hours and days. Remote work conditions may also increase employee retention and productivity, as it reduces external stresses, such as work life balance issues, problems with travel, and childcare needs. More recently, this has also included situations such as emergency lockdowns and COVID-19 related health risks which may mean some employees are more comfortable working from home. There are also financial benefits to remote working, especially for small businesses. With work from home arrangements, employers can reduce cost of office supplies, utilities, and in some cases an office space.
Minimising the risks of remote working
It is also necessary to consider the challenges and pitfalls of remote working, especially in order to minimise risks, and in turn your liability.
Most importantly, remote working can carry several OHS issues. Under the Model Work Health and Safety laws (Model WHS laws), employers are legally responsible for the health and safety of their employees at their workplace. This also extends to remote working. If this duty of care is breached then the employer may be liable for negligence and legal action. However, employees themselves are also required to manage their own health and safety, and should therefore familiarise themselves with, and follow, any company policies pertaining to work health and safety.
OHS issues include unsafe work environment, inappropriate or misuse of equipment, unreasonable work conditions, and mental health risks. To avoid these, employers should be clear on what a ‘safe home environment’ looks like. This includes encouraging regular movement rather than remaining sedentary all day, complying with ergonomic practises, and setting up a safe work station, which includes electrical safety and environmental hazards (eg. noise).
In practice, this may require employees to complete self-assessment checklists for you, or having to provide evidence of their workstations through photographs, or providing staff with, or allowing them to borrow, the appropriate equipment. Assessment of employee remote work conditions should, preferably, be carried out before work commences. Employees should also be given a point of contact for any OHS concerns they may have, such as a HR member. This will also encourage employees to report workplace health and safety issues encountered while working from home, which in turn make it easier for the employer to manage.
Also, employers must ensure that employees have access to their employment entitlements. This includes taking their breaks, working standard hours, and being paid as per the conditions of their contract regardless of their working location.
Beyond this, not all employees experience an increase in productivity and decrease in stress whilst remote working. This could be due to a lack of face-to-face supervision, because of which some employees may not work as efficiently whilst others struggle with meeting perceived expectations. Remote working may also lead to more time and effort expended to access information and support from co-workers and managers. Also, many of us overlook the social isolation one may suffer by working from home. A common side-effect of continued remote working, where social interactions, especially those of informal nature, may be little to none, is loneliness and fatigue. This can have serious impact on an employees well-being.
To combat these issues, employers or managers should schedule regular, if not daily, check-ins with employees. This could include one-on-one calls or even team meetings. The regularity of these check-ins make employees more comfortable with addressing their concerns and questions with employers. Employers can also reduce uncertainty by clearly setting workloads and expectations that employees can practicably meet. Employees should also be provided opportunities for remote social interaction, whether it be scheduling some time during team meetings for non-work related communication, or virtual lunches or morning teas. Whilst these may seem inefficient and unproductive, they have the opposite effect as they reduce feelings of isolation and in turn improve employee wellbeing.
Key Takeaways
Before establishing any policies related to remote working, you must consider the relevant laws and regulations, such as NES and WHS law, as well as consulting with employees to best understand their work from home arrangement needs
For certain employees working home may be more preferable, such as those that live interstate, whilst for others it may be a legal entitlement as prescribed under the NES
Employers owe a duty of care to employees in their workplace, including at home workstations. Under WHS laws employers must, as reasonably practicable, to minimise work health and safety risks to employees to avoid liability.
To achieve this, employers must ensure safe and ergonomic practices are being undertaken, equipment is adequate and appropriately used, environmental hazards are eliminated, and employment entitlements are rightfully accessed.
To avoid decreased productivity, stress related to remote working, and mental health risks due to self-isolation, employers must take steps to increase communication, between them and the employees and amongst the staff, including informal non-work-related connections.
Next Steps
Not sure if you are legally protected with your staff working from home? Sort out your employee and contractor matters with our real estate agency law experts - book your FREE 10 minute chat here to get started.
Boring legal stuff: This article is general information only and cannot be regarded as legal, financial or accounting advice as it does not take into account your personal circumstances. For tailored advice, please contact us. PS - congratulations if you have read this far, you must love legal disclaimers or are a sucker for punishment.