The onset of COVID-19 has forced many employers to direct employees to work from home (WFH) as a means of managing the risk associated with the virus. However, while employees perform work from home and remain ‘out of sight’ of their employers, it is important that their health and safety are not out of mind. Whether or not WFH arrangements are here to stay as the risk of COVID-19 reduces, we recommend that employers review their control measures/policies in place that manage the work health and safety (WHS) risks faced by remote workers.
State and federal WHS legislation apply to workers who perform work at the office and also to remote workers. A workplace is broadly defined as any place where work is carried out for a business or undertaking. It is therefore uncontroversial that an employee’s home may be classified as a workplace if the employee is working from home. This means that employers still have an obligation to ensure the health and safety of employees, even while they perform work at home, and ensure processes for identifying and controlling hazards, and reporting workplace illness or injuries, can be easily adapted to also apply to WFH arrangements.
Although a direction itself to require an employee to work from home may be lawful and reasonable, certain requests employers may make as part of this direction must be carefully considered as such requests can expose employees to new hazards. For example, in Ziebarth v Simon Blackwood (Workers’ Compensation Regulator), a fleet manager injured his back during a fall while WFH. The worker had been provided with a company mobile phone and was directed by his employer to answer all work phone calls when ‘on-call’. When he sustained his injury while rushing out of the shower to answer a work phone call, subsequently slipping and falling, the worker was found by the Industrial Relations Commission of Queensland to have been injured while working as he was injured ‘during the course of employment’. Had the WHS risks that a home workspace exposes to employees been considered by the worker’s employer while directing him to WFH, and had control measures been imposed to minimise or eliminate the same, this incident could have been avoided.
While physical injury is certainly a possible risk in the home workspace, the unique risks that the pandemic have thrusted on society have introduced serious psychological hazards that cannot be ignored. For example, particularly in the context of a COVID-19 lockdown period, employees working from home may experience increased isolation, loneliness, and fatigue, in addition to other risks/dangers they may already be facing in the home environment such as increased caring responsibilities or domestic violence. Employers should diligently identify any and/or all WHS risks employees may be exposed to and address methods of managing, minimising or eliminating such risks.
Under the model WHS laws, employers must ensure, so far as is reasonably practicable, the health and safety of its workers, whether onsite or working remotely. This includes the provision and maintenance of a work environment without, or with minimal, risks to the health and safety of all employees. Accordingly, it is recommended that employers implement a WFH policy that details the WHS obligations all employees working in a home workspace should uphold. Such a policy should also state that the employer assumes no liability for injuries arising in the worker’s home workspace outside the agreed work hours, or any loss, destruction, or injury that may occur to the home of the worker. Such a policy should also apply to the remote worker and any family member, visitor, or other person that may become injured within or around the worker’s home workspace. Although an employer may still be liable for injury/harm caused to a remote worker during the course of employment, a WFH Policy with a strong focus on WHS can increase awareness among employees as to what a safe home workspace looks like, and thereby encourage safety in a home workspace.
In addition to drafting a WFH Policy with a focus on WHS, below are some further recommendations for employers on how to deal WHS risks, and minimising exposure, in the context of working from home arrangements:
1. Consult with employees. Consultation may require employers, together with employees to:
a. Identify hazards and assessing risks
b. Decision-making regarding elimination or minimisation of risks
c. Decision-making regarding facilities to control risks
d. Proposing changes that may affect a worker’s health and safety
2. Have regular and informal catch-up meetings with remote workers to determine whether any WHS risks existing or are likely to exist in the future and discuss ways to manage these risks. Regular catch-ups are also a great way to foster an employee’s connection with the Company, colleagues, and managers.
3. Provide information about mental health/support services including employee assistance programs.
If you require assistance drafting a WFH Policy with a focus on WHS, please do not hesitate to contact Nick Stevens, Luke Maroney, or Daphne Klianis.