In 2020, Australians joined millions of others from around the globe to slow the spread of the coronavirus by working from home. Dr ROBYN JOHNS explores the current work from home trend in Australia and offers some practical tips for employers in line with their work health and safety obligations.
Since the term “telecommuting” was first coined in the early 1970s by former NASA engineer Jack Nilles, the practice has grown in popularity. Some have been motivated by promises of greater work–life balance, others by reducing the financial and time burden of their daily commute. Even before we knew what social distancing was, the portion of employed people in Australia who regularly work from home was greater than 30%, according to 2019 ABS Characteristics of Employment data.
In 2020 so far, we have seen a situation where the entire country is being strongly encouraged to work from home where possible, in a hope that working from home will slow the spread of the coronavirus (COVID-19) and save lives.
Defining the workplace
Under the Work Health and Safety Act 2011 (WHS Act), 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.
A workplace is defined in the WHS Act as a place where work is 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’s duties extend beyond the traditional physical office and premises of the business to the home office.
Protecting an employee’s safety while they are working from home
The key thing to note is that the employer’s duty is to ensure the employee’s safety is to the standard of so far as is “reasonably practicable”. 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.
To minimise risks associated with working from home, Safe Work Australia suggests employers:
- provide guidance on what is a safe home office environment, including what a good workstation set-up looks like and how to keep physically active;
- require workers to familiarise themselves and comply with good ergonomic practices, for example by referring to a self-assessment checklist;
- maintain daily communication with workers;
- provide continued access to an employee assistance program; and
- appoint a contact person in the business that workers can talk to about any concerns.
Employers should also think about how their existing policies and procedures apply when working from home. This includes:
- notification of incidents, injuries hazards and changes in circumstances;
- consultation and review of work health and safety processes; and
- attendance, timesheets, leave and other entitlements and arrangements 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.
Practical recommendations for working from home
Prior to COVID-19, a practical step that the employer could have taken ahead of agreeing to a remote working arrangement at home would be to conduct a ‘risk assessment’. This may include an assessment of such risks as: workstation ergonomics, isolation from distractions, suitability of equipment for performance of work, electrical safety, and data and personal security.
If following the risk assessment an employee’s proposed home workspace was deemed 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 the employer should consider consulting 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, I would then recommend implementing a formal policy setting out the parties’ respective health and safety obligations when working remotely. Comcare has developed a working from home checklist offering guidance and measures on how employers can meet their respective work health and safety obligations, which can be accessed at www.comcare.gov.au/about/forms-publications/documents/publications/safety/working-from-home-checklist.pdf.
Working from home policy recommendations
For employers who have not previously accommodated working from home arrangements, it is recommended that a policy outlining some minimum guidelines concerning health and safety obligations when working from home be developed. A policy should not only ensure an employee’s physical health and safety, but also ensure any risks to the employee’s mental health are eliminated or minimised.
In general, it is recommended that all policies include the following conditions. Namely, that the employee agrees to:
- ensure that their home workspace is arranged so that it is comfortable and ergonomically sound;
- take regular breaks;
- ensure that the workspace is kept clear and free from obstacles or tripping hazards, and is well lit;
- ensure that all work-related information and data is kept secure;
- 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, that 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, regular reviews of the home workstation should be undertaken to ensure the workstation remains fit for purpose. In the current COVID-19 environment, this could involve having the employee send the employer a photo of their set-up. In the absence of a formal home workplace inspection, the channels of communication should remain open.
Frequent communication should also take place about the working arrangement, including communication between employer and employee 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.
Regular review and open channels of communication also become important in the advent of an incident. If a regulator investigation was required, the process would be entirely fact dependent. At a minimum, employers should anticipate that in the course of such an investigation, the regulator would expect to see that the following steps were in place, namely that there was evidence of:
- a specific policy being in place setting out the parties’ respective obligations regarding health and safety, including guidelines on set-up and maintenance of a safe workspace;
- an assessment of the home workspace to ensure its suitability from a health and safety perspective; and
- frequent communications between the employer and employee regarding the remote working arrangements and any issues or concerns.
While in these unprecedented times many employees are willing to do their bit for the greater good, employers should be mindful that even in these challenging times they remain obligated to ensure the health and safety of their workers. Out of sight should not mean out of mind. These are challenging times and employers will be required to make some tough decisions. However, by avoiding the temptation to cut corners now, employers will reduce the risk of issues arising down the track.
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