Working from home brings with it benefits and challenges...what should employers consider to minimise health and safety and Workcover risk
Working from home is not a new phenomenon. However, in the past couple of months as a result of COVID-19, non-essential businesses have been directed to carry out their business operations from home.
Employers have had to quickly adapt to this 'new' arrangement to ensure continuity of business operations.
While there are real benefits with employees working from home, there are also careful considerations employers should ruminate on particularly, in respect of their ongoing the health and safety duties and WorkCover obligations.
What is considered a workplace?
Work Health and Safety Laws (WHS Laws) define 'workplace' broadly to include anywhere where work is done.
This means, the home of employees who are working from home will be a workplace for the purposes of the WHS Laws.
A quandary for employers is the question of which part of the employees' home is a workplace? The simple answer is only where the work is being performed.
Therefore, it is important that there is a clear understanding and agreement which part of the employee's home the work is to be performed. This allows employers to manage and control both potential and foreseeable risks associated with the 'workplace'.
Employers have duties to provide and maintain a safe workplace
Under the WHS Laws, employers (or a person conducing a business or undertaking (PCBU)) have duties to provide and maintain a 'workplace' that is safe and without risks to health and safety.
Employers are not relieved from their duty of care just because employees are working from home. In fact, such an arrangement, not managed properly creates difficulties for employers who are not in 'control' of the employee's working environment.
In order to manage risks associated with working from home, employers need to ensure that there are risk mitigation strategies in place such as (but not limited to):
- clarifying where the work is to be performed;
- undertaking a risk assessment once the place of work has been identified;
- taking photographs of the place of work;
- providing policies and procedures to employees (if these cannot be accessed from home) particularly around incident and hazard reporting; and
- ensuring ongoing contact is made with employees, as the risk is not limited to physical risk but also mental health risk.
Injury sustained during the course of employment
Another aspect of working from home that employers should consider is the issue around employees sustaining injury while at their home.
This is an important consideration as expounded in Hargreaves v Telstra Corporation Limited 1 , where an employee injured her shoulder falling down her stairs on two separate occasions whilst working from home. The employee did not report the first incident. About six weeks later, she fell again, resulting in hospitalisation for her injuries.
The second incident was reported to the employer. She later claimed for both physical and psychological injuries arising from cumulative damage caused by both falls.
The Administrative Appeals Tribunal (AAT) held that the injuries suffered from both falls arose out of or in the course of her working for Telstra. The AAT found that:
- the first injury arose because she left her workstation to get a cough mixture and that this was a necessary absence from work, such as a meal break; and
- the second injury arose because the employee was acting in accordance with an instruction from Telstra to secure her house by locking the front screen door and that this fell within the scope of her employment.
The employee was awarded the costs of all her medical and related treatment expenses and compensation for her incapacity to work.
How can employers comply with their ongoing duties and obligations?
While employers are not in physical control of employees' homes, they are however, in 'control' (only the place identified as the workplace) of the working conditions at home. Therefore, it is important that systems of work are in place specifically around working from home.
Below are some tips employers may consider to ensure they can demonstrate compliance with their ongoing health and safety duties but also to mitigate any risk associated with working from home:
- a checklist is developed specifically focusing on risks associated with working from home and the tasks to be performed by the employee;
- agreement of where work is to be undertaken; photographs should be taken by the employee of where they propose to work these are provided to the employer;
- if there are changes to where work is to be performed that the employee notifies the employer of such a change and a further risk assessment is undertaken;
- set the agreed hours of work and if the employee is required to work overtime that this is first discussed with the employer;
- all incidents are reported immediately or as soon as practicable the following business day; and
- collect key contact details of employers in the event of an incident or emergency.
1 AATA 417
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.