Working from home – health and safety considerations

Friday, May 19, 2017

For many reasons, employees are increasingly seeking flexibility in their working arrangements not only in respect of their hours and days of work, but also in the ability to perform their work remotely. Improvements in technology mean that working from home is more manageable than ever before. Many employers have already begun utilising these arrangements to attract and retain staff and given the respective benefits arising from such arrangements, demand for remote working is likely to increase in the future.

What is a workplace?

Under the HSWA, an employer as a person conducting a business or undertaking (PCBU) has a duty to ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, while the workers are at work in the business or undertaking.

Workplace is defined very broadly in the HSWA as a place where work is being carried out, or is customarily carried out, for a business or undertaking, and includes any place where a worker goes, or is likely to be, while at work.

Therefore if an employee is customarily working from their home, this amounts to a workplace and in addition to the employee’s own duty to ensure their personal health and safety, the employer still concurrently owes a duty in this regard.

While the focus of this article is on an employer’s duties to employees working from home, it is noted that the definition of worker in the HSWA includes contractors and volunteers. Accordingly, any type of worker engaged by a PCBU who is working from home will be responsible for their own health and safety and will be required to comply with the PCBU’s reasonable instructions including any policies and procedures.

What duties does the employer have in regards to protecting an employee’s safety while they are working from home?

The key thing to note is that the employer’s duty to ensure the employer’s safety is to the standard of “so far as is reasonably practicable”, and clearly the level of control an employer can have over the health and safety of an employee who is working from the employer’s premises is greater than the control the employer can have over an employee working from their home.

There are presently no specific guidelines from WorkSafe regarding the scope of an employer’s obligations to ensure that an employee’s home workspace is compliant from a health and safety best practice perspective.

However there are still a number of steps an employer can take to minimise the risk of harm to an employee working remotely, particularly if this is to be a frequent arrangement as opposed to ad hoc.

Practical recommendations for establishing a permanent flexible-working arrangement

Section 69AA Employment Relations Act 2000 (ERA), defines a “flexible working request” as a written request to vary the terms and conditions relating to the employee’s working arrangements. The definition of working arrangements includes the place of work.

If an employee is seeking to perform some of their work remotely on a customary basis, it would be best practice for the employee to make a formal flexible working request and for this to be considered by the employer in accordance with the requirements in Part 6AA ERA.

Part 6AA sets out an exhaustive list of grounds for refusing a flexible working request, but notably health and safety is not one of them. However other grounds such as the impact on quality of work, the impact on performance or the burden of additional costs may be relevant considerations.

Once an employer has agreed to the implementation of a flexible working arrangement, there is no mechanism under the ERA for amending or rescinding the agreement. Therefore it would be advisable, before responding and agreeing to the remote working arrangement, to discuss with the employee the practicalities of the arrangement, including the parties’ respective health and safety obligations.

A practical step that the employer could take (prior to agreeing to a remote working arrangement) is a home workplace “risk assessment”. This may include an assessment of:

  • The ergonomics of the proposed workstation;
  • The isolation of the proposed workstation from other distractions;
  • The suitability of equipment for performance of work;
  • Cords and electrical safety;
  • Plans for protecting the security of data and personal security of the employee;
  • Suitable fire safety equipment, first aid kits and emergency procedures; and
  • Identification of any other significant risks/hazards that need elimination or minimisation.

If the risk assessment of an employee’s proposed home workspace deems it unsuitable in its present state, to satisfy the test of “reasonably practicable”, then the employer may need to consider providing assistance either as a financial contribution to the purchase of suitable equipment, or through the supply of suitable equipment for work purposes, or consult with the employee about the willingness to absorb these costs themselves. Ultimately, if the employee is unwilling to meet the costs, it may be that the flexible working request could be refused by the employer on financial grounds.

If the workplace risk assessment does deem the home workstation suitable or that it will be following provision of suitable equipment and the employer agrees to the flexible working request, we recommend implementing a formal policy setting out the parties’ respective health and safety obligations when working remotely.

Working from home policy recommendations

Whether regular or ad hoc, we would recommend that an employer has a policy including some minimum guidelines as to the parties’ respective health and safety obligations when working from home.

It is important that this policy not only considers the obligations to ensure an employee’s physical health and safety, but also ensures any risks to the employee’s mental health are eliminated or minimised. In general, we would recommend that all policies include the following conditions:

  • The employee agrees to ensure that their home workspace is arranged so that it is comfortable and ergonomically sound;
  • The employee agrees to take regular breaks;
  • The employee agrees to ensure that the workspace is kept clear and free from obstacles or tripping hazards, and is well lit;
  • The employee agrees to ensure that all work related information and data is kept secure;
  • The employee agrees to keep in regular communication with their managers and proactively discuss any problems that arise from working from home; and
  • If a risk of harm to the employee’s physical and/or mental health and safety arises, the employee agrees to consult with the employer about ways this harm can be eliminated or minimised.

Maintaining health and safety standards

As with office workstations, annual reviews of the home workstations could be undertaken to ensure that they remain fit for purpose. Depending on the resources available to the employer, this could be addressed through the employee:

  • Discussing their workspace and home workspace setup with an occupational therapist;
  • Sending the employer a photo of their setup; or
  • Having a follow-up in home visit from an occupational therapist.

Both parties in accordance with the duty of good faith should be in frequent communication about the working arrangement, including communicating with each other about any issues or concerns arising from working remotely. If any serious issues do arise, then the parties should consult with each other about how these risks can be eliminated or minimised. Depending on the circumstances this could be anything from making some minor adjustments to improve the working environment, changing (with agreement) the number of days or hours the employee spends working from home, or in the most serious of cases, proposing that the employer return to working from the office in a full time capacity.

Whilst the preliminary requirements for an employer to establish a remote working arrangement with an employee, especially from a health and safety compliance perspective may seem daunting, once established, the respective benefits to each party to the relationship are likely to far exceed these initial hurdles.

In the event of a notifiable incident of an employee working remotely

If a notifiable incident occurs when an employee is working remotely, as with an incident that occurs at the employer’s premises, WorkSafe may conduct an investigation which would include visiting the site of the accident.

If WorkSafe investigate, it would likely consider what hazards or risks were present, what mechanisms were in place for eliminating or minimising such hazards or risks and what else could have reasonably been done in relation to ensuring health and safety.

Whilst it will be entirely fact dependent, at a minimum we would anticipate WorkSafe would expect to see that the following steps were in place:

  • A specific policy setting out the parties’ respective obligations regarding health and safety, including guidelines on setup and maintenance of a safe workspace;
  • Evidence of an assessment of the home workspace to ensure its suitability from a health and safety perspective; and
  • Evidence of frequent communications between the employer and employee regarding the remote working arrangements and any issues or concerns.

There is a certain degree of unease in the health and safety space and employees’ flexible arrangements are part of this. We anticipate case law in the future will likely provide more guidance in due course.

For more information, please contact a member of our Health and Safety team.

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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