It has been nearly six months since Australian employers first started implementing measures to reduce the spread of COVID-19 in the workplace and broader community, including working from home (WFH). The move to WFH arrangements arose on two fronts: businesses implementing WFH arrangements as a control measure to manage work health and safety (WHS) risks, and Government health directives (including Victoria's current stage 4 lockdown requiring WFH arrangements for many non-essential workers).
Even when the risk of COVID-19 reduces, we expect flexible working arrangements will remain in place for many businesses and on a wider scale than before COVID-19. This change to where work is performed will impact a business's risk profile, and employers must be aware of any new or different risks that present when the workplace extends to your employees' homes.
Risks in the workplace (AKA your employees' kitchen tables)
Businesses must be aware of their obligation under WHS legislation and their liability under workers' compensation legislation. Identifying and managing workplace hazards and reporting and investigating illness or injuries may be more difficult as the location of workplaces have moved from an employers' premises to the home office or kitchen table. This shift requires employers understand what they must do to discharge their duties while also maintaining employees' appropriate work/life balance and respecting their rights to privacy.
From a WHS perspective, businesses must ensure, so far as is reasonably practicable, the health and safety of workers which includes the provision and maintenance of a work environment without risks to health and safety. A workplace is broadly defined as any place where work is carried out for a business or undertaking. It is uncontroversial that an employee's home is a workplace if the employee is working from home. Therefore, businesses need to ensure the processes they have in place for identifying and controlling hazards, and reporting workplace illness or injuries can be adapted to also apply to WFH arrangements.
Under workers' compensation legislation, where an employee is injured at work, they will be entitled to claim compensation if the injury arises out of or in the course of employment and the employment was the main / substantial / significant (depending on your jurisdiction) contributing factor.
These duties continue to operate at an employee's home in the same way that it would any other place of work. This means that coverage exists for injuries and illnesses arising from an employee conducting WFH. While workers' compensation schemes are "no fault", the employee still needs to establish their employment to be a "main / substantial / significant contributing factor" for the injury or illness and adduce medical evidence in support.
A business's level of control and influence over an employee's WFH arrangement will be a factor in determining liability and what steps it must take to ensure safety. While it may be reasonably practicable for a business to regularly check for hazards in the workplace (eg. slip and trip risks, electrical safety of equipment), this may not be reasonably practicable in, for example, large organisations where many employees are now working from home. Businesses will need to consider a new range of control measures to discharge their changed level of WHS obligations.
Critically, employers need to strike a balance between directing employees to do certain things which may introduce new hazards (for example, requiring all work phone calls to be answered, causing an employee to rush out of the shower to get to the phone, and then slipping and injuring his back) against not providing any direction at all (leaving employees to deal with existing hazards without any guidance).
A business's level of control and influence over an employee's WFH arrangement will be a factor in determining liability and what steps it must take to ensure safety.
New or different risks
The relocation of the workplace to home exposes employers to matters relating to an employee's personal circumstances occurring during "the course of employment". For example a recent New South Wales Court of Appeal case has highlighted employers can be liable for workers' compensation in the context of employees in a de facto relationship living together and WFH. In this particular case an employee whose WFH hours stretched beyond her scheduled nine-to-five work time was held to be in "the course of employment" when she was killed by her de facto partner, who was incidentally also her colleague and supervisor. While this is an extreme example of the risks of de facto partners working for the same employer from home, it does raise the question of what measures employers can take to manage the risks arising from what appears to be the new norm in the way work is conducted.
WFH arrangements also cause existing WHS risks to manifest in different ways given the changes in work location and environment. Examples include:
- Sexual harassment, harassment and bullying: with employers having less direct supervision over employees, employers may experience increased difficulty in detecting and investigating complaints of inappropriate workplace behaviour such as sexual harassment, harassment and or bullying. Employers may find themselves becoming more reliant on workers self-reporting complaints. If the employer does not have a robust system for receiving complaints, the inappropriate conduct may not be properly investigated in a timely manner thereby increasing exposure and liability.
- Musculoskeletal injuries: Safe Work Australia has recently issued a warning about the risks of prolonged sitting in the context of WFH. Musculoskeletal injuries which are caused by prolonged sitting are one of the most common workers' compensation claims made by employees and left unmanaged can lead to a range of adverse implications (eg. common law claims).Employers should be concerned with how to best manage good ergonomic practices in a WFH arrangement.
- Domestic violence at home: As discussed above, the NSW Court of Appeal case serves as a timely reminder (albeit a tragic and extreme example) of the risks of domestic violence when WFH. Employers should be concerned with how to enable employees feel they can safely and confidentially disclose domestic violence. Re-visiting domestic violence policies and processes to determine how they can be amended to reflect WFH arrangements is one step employers can take to assist in managing this risk.
What can I do to manage risk?
To assist employers find an appropriate balance of remote working supervision to manage the health and safety of their employees and manage workplace hazards, we outline some possible strategies:
- Clarify when the employee is "at work": This seeks to delineate between when an employee is conducting work or on personal time while working from home. To assist, employers could:
- establish agreed times for working remotely (eg. agree in writing that the employee will only work between the hours of 9:00am and 5:00pm at home); and
- where concerns exist with employees complying with agreed times, employers may consider switching off access to systems after a certain time as a virtual "shutting of the doors" to indicate the end of the work day,
- Update the workplace incident reporting policy to include incidents that occur while working from home and reinforce that employees must report workplace incidents even if they occur at home as they happen;
- Investigate at home injuries: when an employee reports an injury, investigate the incident as soon as possible by speaking to the injured employee and seeking details to determine if the employee was injured during the course of employment, or while undertaking private activities unconnected to work (eg. going for a run during work hours);
- Maintain daily communication with employees: employers should regularly check in with their employees to see if they are experiencing any physical or psychological WHS concerns.
- Provide continued access to an employee assistance program and ensure confidential support channels are available for employees to report on issues that may be occurring at home, such as domestic violence;
- Conduct awareness training for supervisors and managers so they can better consider health and safety implications where they direct, induce or encourage an employee to conduct specific work tasks from home;
- Update existing policies and procedures to cover working from home arrangements (eg. sexual harassment, harassment and bullying procedures); and
- Provide guidance or checklists to employees regarding good ergonomic practices and conduct training on establishing and maintaining a safe home office environment.
Key takeaways for businesses
While employees working from home remain out of sight, they should not be out of mind. The legal obligation to ensure employee health and safety, so far as is reasonably practicable, remains regardless of the employee's work location.
Identifying the specific risks associated with remote working from the home for each employee and deploying controls (such as those outlined) in response to those risks is likely to assist employers with maintaining work productivity during the crisis and beyond.
Above all, continue to review your controls that manage the WFH risks regularly. What may have been reasonably practicable steps to take at the beginning of the pandemic when businesses were required to direct employees to WFH almost overnight will have changed now that businesses have had a number of months to consider, apply, review and enhance the relevant controls.