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Working from home: what legal risks might your business be exposed to?

May 11, 2022

Working from home is now an expectation for most businesses to offer and the majority of office workers will be doing at least 1 day a week at home. However, not all businesses have their bases covered when it comes to the legalities of having a work from home policy. 

Safety

Workplace Health and Safety (WHS) laws still apply when your team works from home. As an employer, there are a number of controls you need to put in place to eliminate or minimise the health and safety risks associated with working from home.

You are required to do the following (as outlined by SafeWork Australia):

  • provide and maintain a work environment that is without risk to the health and safety of workers,
  • provide adequate and accessible facilities for the welfare of workers to carry out their work, 
  • give workers the necessary information, instruction, training or supervision to do their job safely and without risks to health, and
  • consult with workers, and health and safety representatives if you have them, about health and safety issues that may directly affect them. 

You have probably already covered all the obvious things, like providing your employees with a desk and a comfortable chair, but there are many other things you need to consider. For example, whether or not your team members have clear and unobstructed access to the bathroom or the kitchen (which all become part of the workspace when your employees work from home). If their working environment is not safe, you can still be prosecuted.

To combat this risk, you will need to conduct safety assessments. It is good practice to ask your employees to undergo a self-audit, where they can review their working situation and provide you with photos of their workspace so that you can assess any hazards with their working situation and cover yourself if anything were to happen.

However, it is not all about physical safety, ensuring your team is mentally well is also your responsibility. Many employees that work from home experience a number of issues including loneliness, a blurred working/home environment and trouble switching off. When these factors start having a real negative impact on your team, you can end up in quite a bit of strife - particularly if your employees start a workers comp. claim! It’s your responsibility to minimise the WFH risks that can impact mental health.

Hours of work

Alongside WFH policies, flexibility with working hours was introduced at many companies to accommodate that lockdown load (e.g. caring for and assisting in teaching children, allowing for outside and fitness time, etc.) However, this flexibility may have some hidden consequences. You may be obligated to pay overtime or penalty rates.

If an employee prefers to take a few hours during the day so they can assist with home schooling and thus works until later in the evening instead, they may be entitled to a higher rate of pay for some of those working hours. To overcome any issues or misunderstandings when it comes to flexible hours of work, you need to stipulate expectations, pay rates, hours of work, etc. in both your documented WFH policy and in any relevant employment contracts.

Suitable breaks

While some are very comfortable organising flexible hours and taking appropriate breaks, others struggle to take the time away from their desk and have an adequate break (particularly with the blurred lines between work and home).  With the usual cues to take a break no longer there, you might find employees aren’t taking their contracted breaks and/or aren't stepping away from their desk to take a break. 

You need to be encouraging your team to get into a routine and ensure you are regularly reminding your team that they need to be stepping away and taking a proper break. You will be pretty familiar with who your regular offenders are and who you need to continually remind, so stay in touch with them and continue to give them some tips on how to take good breaks (like going out for a walk, taking 5 minutes from the desk to stretch and get a cup of tea, etc.).

Surveillance

Most employers were quite uneasy when first having to allow their employees to work from home - after all, the traditional way of measuring productivity was to check seats and listen for the tapping of the keyboard. To combat this fear of low productivity, many business owners chose to implement surveillance measures (e.g. webcam access, keystroke technology, website trackers, etc.).

While you have the right to security and protecting your property and information, your employees also have the right to privacy and implementing the software without their knowledge and consent, you can be in breach of privacy laws.

If you have already, or are considering making use of surveillance software, you need to have a legitimate reason to do so. You also need to inform your employees and get their consent (note: written consent is always best practice.)

The takeaway

Understanding your rights and responsibilities and those of your employees when it comes to working from home is crucial. If there's one thing you take away from this article it’s that no matter where your team works, you are still responsible for their safety. So get some legal advice to help you draft up your policies and contracts and ensure you are doing what you can to ensure everyone's safety and privacy is being maintained.

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