The legal risks for employees working remotely

by Rolf Howard, managing partner at Owen Hodge Lawyers

On the day that we walked away from our offices to begin our home/life work experience, many of us believed it would be temporary. Little did we know that the pandemic would bring major permanent changes to our places of employment and the work locations of employees.

As time has proven, this new way of going to work in our homes is doable and beneficial, both personally and financially.

Yet, there are ramifications to both the employee and the employer; some of which are based in genuine legal concerns. Let’s examine a few areas of concern that now need some redefinition and possibly alterations to ensure safety, security and performance for the employer and the employee.

Safety

First it is important to remember that workers’ compensation injuries and claims can still occur in a work from home environment. While it may be more difficult to define if the injury is work related, such as one that happens when an employee takes a break at home versus leaving the office to go get coffee, injuries can still occur at home and in the course of employment. Examples of these injuries include;

• Repetitive occupational injuries that are the result of excessive computer work
• An injury that occurs during the course of your employment, at home or at your workplace can qualify for workers’ compensation benefits
• Mental health injuries including those that are based in stress or isolation or a lack of boundaries between work time and home/family time

Therefore, it is important for employers to remain vigilant about work related injuries. Employees must also be forthcoming about any happenings at home that have, or may, cause physical or emotional harm to them while working from home.

Read more: Tribunal finds employee's 10-year depression not 'permanent impairment'

Working Hours

Flexible work hours on an employer’s premises can still be monitored with relative ease. However, when all of the work day hours are performed at home, an employer is much less able to confirm that the hours they are paying for are being fully completed. With a salaried employee, this may not be as significant a concern because an employer can monitor the quality and volume of work being produced similar to an onsite situation. But, when an employee works hourly it is possible that their work production could be completed in a shorter amount of time, yet the employee could bill for the ordinary amount of time it usually takes them to complete a project.

In addition, if an employee is eligible for overtime, it is possible that they could use less of their regular work day to complete their work load and “save” the work for the evenings or weekends, thereby creating overtime pay. To combat some of these problems an employer may want to consider the following;

• Update your work production/time expectations with all employees
• Set new standards as to how much work product must be produced during the regular work hours
• Restate what is considered “regular work hours” either by blocks of time and days, or an exact number of hours that must be billed during a specified period of time before overtime can be charged to the company

Material/technology needs

While many people do have some capacity to work from home with adequate materials and technology, it is rare that a home is set up for the demands of a daily office. Employers need to be mindful of the need’s employees may have at home including;

• Proper work stations including ergonomic desks and chairs
• Adequate computers including PC’s, Mac’s, Printers, and or Laptops
• Sufficient accessories such as headphones, office supplies, keyboards and a mouse
• Internet access/connectivity that is powerful enough to allow the employee to access office files and Zoom/Microsoft Teams applications

Once an employee’s position is home based, it's the employer’s responsibility to make sure that the employee has all of the necessary supplies and access to perform their job becomes a paramount responsibility of the employer.

Security and confidentiality

If your office deals in information that requires secure internet connections and confidential information, it may become more difficult to ensure both of these requirements in each employee’s personal residence for the following reasons;

• An employee’s home will always be subject to other family members and visiting friends who might have access to or accidently encounter secure and/or confidential information
• An employee who has confidential company information at home may have an easier time copying or transferring this sensitive information to a private source such as a flash drive or private hard drive on their home computer

An employer may be tempted to consider some form of surveillance on the technological equipment being used by their employees. However, before attempting to set up a system such as this it is imperative that an employer seek legal advice as to the proper manner in which to do this.

Read more: NSW mandates COVID-19 vaccine for certain workers: What does it mean for employers?

Professional behaviour

When employees are in an office it is easier for an employer to monitor their staff’s professional behavior and correct any concerns in an expedient manner. But when employees are working from home an employer no longer has the ability to watch employees’ interactions with one another. Therefore it is important to stress that even in a work from home environment, professionalism is expected. As such an employer may want to review the following;

• Video conferences such as those conducted via Zoom or Microsoft Teams require the same level of professionalism as an office. This includes proper use of language, business attire and a quiet uninterrupted environment in which to hold your meetings
• Email must be used in an appropriate manner that does not promote inappropriate humor, bullying or harassment in any form
• Telephone calls must be made in a manner in which confidential information is not revealed to a bystander

Employer/employee Interaction

Working from home is likely to create a greater need for communication between managers and employees. There are several ways an employer can provide a safe and productive work from home environment for their employees. The following suggestions can go a long way in keeping work product up to par and relationships strong and healthy;

• Daily check-ins with each employee to discuss their daily schedule
• Consistent availability throughout the workday to answer questions and concerns expediently to allow employees to work efficiently
• Regular review of each employees pending work projects including expectation for when a project will start, how long it will take and when it is expected to be completed
• Inquiring at least weekly as to what supplies or materials an employee may need to perform their work duties
• Interest and concern for the mental and emotional well-being of the employee
• One Zoom or personal meeting per week (taking the necessary precautions) so that the employer can see an employee’s demeanor
• At least one office wide Zoom or Microsoft Teams meeting every two weeks to ensure employee connectedness and moral

While working from home was foisted upon the world in a period of crisis, it does not necessarily mean that all that has been implemented is either perfect or needs to be eliminated. With careful thought and planning it is possible for an employer to now offer new flexible options to their employees that are safe and productive and increase an employee’s quality of life both at work and in the home.