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Working From Home – The Forced Hand Of The Coronavirus

Originally published by NB Lawyers Jonathan Mamaril.

The Coronavirus has had a number of unexpected (and expected) ripple effects in the workplace.

  • Pay cuts
  • Stand downs
  • Redundancy
  • Government Assistance and Stimulus packages
  • Social Distancing
  • Increase in Microsoft teams and Zoom use
  • Sourcing a webcam been a bit more difficult
  • Who should stay in the office and who should work from home

Working from home is not a new phenomenon and it has been an essential part of workplaces especially in technology and professional services in particular to provide workplace flexibility.

It is also not that controversial to say many workplaces have resisted the opportunity to provide a working from home solution for employees. There are of course some workplaces where working from home would be limited or even if it is possible the full range of services cannot be provided to clients and customers.

However in circumstances where work from home is an option the flexibility it provides has great benefits for both employees and employers. In respect of Employers there are a number of legal considerations.

Workplace Health And Safety

There is numerous case law which points towards Employer liability for employees who are working from home. The most famous is Hargreaves and Telstra Corporation Limited [2011] AATA 417 (17 June 2011) wherein an employee working from home with computers, cabling and remote log in internet access tripped down the stairs and injured her shoulder.

There were a few key elements to that case (which is almost 9 years old) the main one being the employee had logged into the Telstra system before walking down the stairs – to grab herself some tea/coffee. In that case the Employer was held liable and compensation was payable.

Employers have a duty to so far as is reasonably practicable, take reasonable care of the physical and mental health and safety of its workers and these duties will also apply in a work from home situation.
Reasonably practicable takes into account the likelihood of the risk, whether risk has been minimised and the cost of eliminating the risk.

Breaches of workplace health and safety legislation can be quite hefty and does differ slightly from state to state. To give you can idea, for example in Queensland, a breach which results in death will be considered industrial manslaughter.

  • Industrial manslaughter can lead to up to 20 years imprisonment.
  • Category 1 offences can lead to fines of $3 Million and individuals involved in the breach fines of up to $600,000 or up to 5 years in jail.
  • Category 2 breaches can lead to penalties of up to $1.5 Million or $300,000 for individuals
  • Category 3 breaches can lead to penalties up to $500,000 or $100,000 for individuals

Policies

A good way to alleviate risk of workplace health and safety breaches, injury claims (that have a higher chance of success) or simply plain old complaints is developing and utilising a Work from Home Policy. The policy should consider the following:

1.      Is the work area clear and unobstructed?
2.      Are there any hazards identifiable?
3.      Is there a working smoke detector?
4.      Is there a fire extinguisher?
5.      Are there any tripping hazards?
6.      Are electrical cords and appliances safely secured?
7.      Is there a basic first aid kit?
8.      Is the chair ergonomic?

This is not an exhaustive list but gives Employers an understanding of the numerous risks in a home. It may well be that some equipment or safety equipment will need to be provided.

Employers may want to consider photographic evidence to support any checklist self audit provided by employees. Steps taken here will mitigate risk.

Also consider the IT systems in place and any further protection required to be provided by your IT provider. Our friends at Ramtech have put something concise together around cyber security which is worth a read.

Further, consider reminding employees of any confidential information or company property clauses in contracts or policies you have in place – misuse of confidential information and/or company property will still be considered misconduct.

Lastly, consider the expectations of employees working from home.
Will you require a daily huddle?
Will phones need to be answerable?
Who will be responsible for certain duties and tasks?

The Coronavirus is potentially a big reset and Employers are caught on the hop when it comes to working from home. Take steps and mitigate risk – As Employers you do not want to come across a number of dispute applications once business is back on deck and in the office.

About the Author:  Jonathan Mamaril 

Jonathan Mamaril is the Director at NB Lawyers – Lawyers for Employers, he leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.

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