Articles > COVID-19

Working from home legal issues

April 4, 2020   Ezra SarajinskyPhilip Evangelou

Having staff or contractors working from home or off-site isn’t new. But having an entire workforce operating remotely is unprecedented at the scale we are currently experiencing it. The world is conducting a real time experiment with having a distributed workforce connected via Zoom, Slack, Email, Cloud Storage, phone calls, and staff in all-day pyjamas. Once the COVID-19 situation settles and some normalcy is resumed, if this world wide experiment is deemed a success, it may well be a new norm.

What legal responsibility do employers have with employees working from home?

Documenting a work from home arrangement

Work from home arrangement should be documented, either as a part of the employment agreement, a stand alone document, or as a staff policy. Alternatively where relevant employers can rely on enterprise agreements that outline the obligations of employers and employees for work from home arrangements.

What about equipment and tools?

It is the obligation of an employer to provide tools and equipment necessary for work. The provision of tools is something that distinguishes employees and contractors (with contractors being expected to provide their own tools). Many employees may be able to use their personal laptop, existing home wifi, mobile phone, software and so on. They may also be able to claim tax expenses for this usage. Employers should not necessarily assume the willingness – or availability – of employees to use personal equipment for work. We suggest that the provision of equipment or reimbursement for expenses be documented in the work from home agreement.

If furniture, such as a quality work chair or desk is needed by an employee, they should be able to either purchase it via a salary sacrifice arrangement, purchasing it or lending it to them.

Employers should be mindful of the security considerations in allowing employees to use their own laptops. It would be advisable to provide laptops with the business’ security software and protections installed.

Occupation Health and Safety for workers at home

Employers have an obligation to maintain health and safety obligations for their employees wherever that work is carried out. In the event of an injury the test is whether that injury was caused while the employee was in the course of employment. This is something that can be a difficult consideration to make when employees are working from home: if an employee is writing work emails on their laptop on their couch, goes to their kitchen to make coffee, and slips over – is the employer liable? In most cases yes, and the employer’s worker compensation insurance will cover it.

Employers have a responsibility for making sure that the work environment is safe for their employees. This may mean making sure that employees’ home environments have smoke detectors, fire alarms, adequate fire exits. Working out how your business verifies the safety of an employee’s work environment should be documented in your work from home policy. For many workplaces, this requires employees to conduct a self-check of their home, and clearly showing employees how to do this will protect employers. If an employee’s home environment is not safe, employers should not allow that employee to work from it.

Can employees request to work from home?

Many enterprise agreements hold clauses that entitle employees to flexible work arrangements. They usually include the right to alter hours, pattern and location of work.

With Modern Award or common-law contracts, the National Employment Standards provide employees with the right to request flexible work arrangements. However the right is only to make the request, and employers can refuse it on reasonable grounds. The request can only be made by employees who are:

  • The parent (or carer) of a school aged or younger child
  • A carer (under the Carer Recognition Act 2010)
  • Have a disability (and are qualified for a disability support pension under the Social Security Act 1991)
  • Aged at least 55
  • Experiencing family or domestic violence, or are providing care to a family member who has experienced family or domestic violence.

The frameworks described above are formal requirements as per the Fair Work Act. However most work from home arrangements are made informally between employers and employees.

If you would like to clarity on how your organisation manages its work from home arrangements, contact us.

About Ezra Sarajinsky

Ezra SarajinskyEzra is a founder of OpenLegal. Having spent the last decade working with startups, small businesses and corporates, Ezra is evolving a client-centric experience that tightly integrates digital technology with project managed services. His legal focus is employment, corporate and migration law.

About Philip Evangelou

phillipPhil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.