What are employer WHS obligations for employees working from home during COVID-19?

Due to the COVID-19 pandemic, many employees have asked or been instructed to work from home, but did you know that employers have WHS obligations when employees are working from home? While there can be benefits to working from home, there can also be challenges (as illustrated so perfectly in this video!).

Employers need to remember that they still have an obligation to ensure workplace health and safety standards are upheld, even if the workplace is someone’s home. That’s why it’s important to conduct Working from Home Assessments.

Do employers have fewer WHS obligations when an employee works from home?

No. In fact, the employer’s obligations to uphold health and safety standards are no less than they would be if the employee was working from the organisation’s premises.

What sort of WHS risks or hazards can an employee be exposed to in their own home?

The WHS risks or hazards typically present in a workplace can also be present in an employee’s home. These risks may be physical or psychological. Physical risks include:

• Slipping, tripping or falling
• Risks posed by working with electrical items
• Risks posed by manual handling
• Risks posed by incorrect or inadequate equipment (not ergonomic).

Unsafe or unhealthy working conditions can also lead to psychological risks, including:

• Being tasked with an excessive workload
• Contending with organisational change
• Managing conflicting demands
• Experiencing a lack of role clarity
• Feeling uninvolved in decision-making processes
• Contending with inadequate communication practices
• Experiencing loneliness and/or isolation.

Is it just the working area itself (e.g., a home office) that needs to meet WHS standards?

It’s not just the working area that needs to be safe when an employee works from home. Facilities that the employee uses in the course of their working day are also subject to WHS standards, such as the kitchen and bathroom.

What are the employer’s WHS obligations if an employee is injured while working from home?

If an employee sustains an injury while working at home, it would need to be determined whether the injury arose out of, or in the course of, the employee’s employment. In recent years, there have been several cases where an employee has been injured at home and has been entitled to receive workers’ compensation.

One such case involves a Telstra employee who slipped down her stairs while working from home in a marketing role. The worker fell twice in two months, once when she went to get cough medicine from her fridge (while wearing socks) and again locking her front door. She had been instructed by her employer to ensure the door was locked, as a break-in had recently occurred there. Telstra argued that they should not be liable as the worker was not at her designated workstation when she fell. Still, a tribunal found that both falls arose out of her employment with Telstra, and they were required to offer compensation.

In another case, a teacher brought student workbooks home after school to finish marking them. The books were in a cane basket, and the teacher slipped and fell on the stairs at her home while carrying them inside. She fractured her ankle and it was determined that her injuries arose out of her employment. Workers’ compensation was awarded.

If someone else is at home when an employee is working from home, are the employers obligated to ensure they are not exposed to risks/hazards also?

Children, parents, friends and clients who visit during working hours may be exposed to risks in the working environment. Depending on the circumstances, employers may be liable for this. At Recovery Partners, we’ve worked with employers who have been involved in fatalities and serious injuries of visitors, and we’ve seen the devastation it causes for everyone involved. No business owner wants their employees or anyone else to get hurt. Employers need to take any reasonable action to remove or mitigate the effects of WHS hazards in a home working environment.

What if an employee is caring for someone in their home while also working?

This question often arises when a parent or carer works from home while also looking after a baby or small child. From a workplace health and safety perspective, caring for a child while also attending to work responsibilities can be problematic. It’s difficult for a worker to manage competing demands, and this difficulty may compromise WHS standards. It’s possible that a child could sustain an injury while a worker is distracted, and the employer could be held accountable for this. As such, our risk assessments have found that it’s usually not appropriate for the primary carer to work from home while caring for young children.

What are the ramifications for the employer if someone is hurt in the home while a staff member is working there?

Apart from the distress a work-related injury can cause to all parties involved, there can also be serious ramifications for employers. These include:

• A potential public liability insurance claim. Employers should make sure they have adequate insurance in place to cover the risks of people working from home
• Penalties of large monetary fines or even custodial sentences for WHS breaches
• Experiencing negative publicity and subsequent damage to an organisation’s brand in the wake of an incident.

This issue of employers and their duty of care to employees working from home seems to be gaining momentum. Why is it so important at the moment?

Because there’s been such a significant increase in employees working from home, employers have had to come to grips with how WHS obligations apply in these environments. Accordingly, there has been greater media attention and public discussion of the topic. Furthermore, there have been increasingly substantive fines and custodial sentences for Work Health and Safety breaches, including penalties issued to employers for breaches in an employee’s home.

In the case of Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121, the Industrial Relations Commission of Queensland found that a fleet service manager who had injured his back in a fall at home had sustained the injury in the course of his employment. The worker had been given a mobile phone for when he was rostered as ‘on-call.’

His employer had previously chastised him for failing to answer the phone promptly. When he sustained the injury, the worker was rushing out of the shower to answer a call on his work phone. He slipped and fell on the wet tiles, injuring his back. The worker was awarded compensation, as the ruling acknowledged that he was expected and contractually obliged to answer his phone. The fact that he was hopping out of the shower to answer it may have increased the likelihood of an injury being sustained, but this did not relieve him of the existing obligation to answer his phone.

What do employers need to do to effectively manage employees who work from home?

To effectively manage employees working from home, organisations should have a documented policy that outlines the rules of such arrangements. The employer and employee should also agree to their specific arrangement, referencing:

• How other staff should communicate with the employee at home
• How the health and safety standards of the work environment should be upheld
• What the requirements for working hours are, including start and stop times
• What equipment is required and who will provide it (including phones, computers, software, internet, etc.)
• How work will be allocated (e.g., using communications systems such as Slack, Trello, Asana).

How can employers make sure an employee’s home is a safe working environment?

The best way for employers to make sure an employee’s home is a safe working environment is to conduct an assessment. Employers may feel like this is an invasion of the employee’s privacy, but the fact remains that it’s the employer’s responsibility to ensure the environment is safe. Employers can ask employees to do self-assessments, but we generally advise against this.

It’s difficult for an employee to be objective (especially if they really want to work from home). It’s also unlikely that the employee will have the necessary understanding of workplace health and safety to conduct the assessment thoroughly. Each workplace will be different, and therefore should be assessed on a case-by-case basis.

Recovery Partners can assess home working environments for WHS compliance, or organisations may have an internal resource for this purpose. If using an internal assessment resource, it’s important to make sure it’s up-to-date and relevant to the geographical location of the employee’s home.

What sort of things will a risk assessment consider?

The purpose of a risk assessment is to identify any risks that are present and ascertain how they can be removed or mitigated. It’s always individualised and specific to a person, the type of work they do and the environment their work occurs in. For example, if a Recovery Partners team member was attending someone’s home to conduct an assessment, they would start by asking to look at the place the employee will be working.

If the employee shows us into their office and indicates that the old Ikea desk and rickety chair is where they’ll be sitting, we’ll recommend getting a new desk and chair. If there are obvious physical hazards like power cords running across a room (a trip hazard) or unstable shelving units (that could fall on someone), we’ll make a note of them and recommend alternative arrangements or fixes. We’ll check power points and for a safety switch.

As most people no longer have home phones, it’s important to check phone reception too, so we know they can call for help if they need it. We look at accessibility and ergonomics and how they move in the space. Do they have to keep twisting to access a printer? Do they have to stand on a chair to reach the stationery they need? We also assess what could happen if there was an emergency, like a fire. We look at noise levels and environmental sounds like nearby construction sites (which could be a distraction).

We consider psychosocial risks such as personal security and isolation. Does the worker feel safe, supported and connected? We also look at work practices to make sure they’re reasonable and viable. What are the agreed start and finish times? What about breaks? Is the workload manageable? Once we’ve conducted an assessment, we suggest a written agreement be entered into by both parties to confirm the arrangement.  

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Our consultants love to have a chat, so go ahead and give us a call on 1300 OHS RTW (647 789) or email enquiries@rrp.com.au