Working from home: The legal requirements all business owners need to be across

Working from home (WFH) is now entrenched as a standard working arrangement for a majority of office workers. It is no longer reserved for what was known as the “progressive” businesses, or the privileged few employees. However, some businesses might have developed a few bad habits when it comes to WFH arrangements. 

It’s not surprising really when the majority of businesses were needing to react fast to cope with lockdowns. Most of the time it just involved sending people home with a laptop and crossing your fingers that everyone would use common sense (which we all know isn’t so common). But this kind of action won’t work for the long term.

When it comes to setting up your business and team for regular WFH, there are a number of foundational legal requirements that need to be addressed.

Physical safety

If you are determined to make WFH a part of your business strategy, then safety has definitely been one of your key considerations.

More than likely you have considered the obvious need to make sure that your employee has a proper workspace and that their desk, chair etc is all ergonomically designed. But you can’t stop there. When an employee works from home, any part of the home they need to traverse in an ordinary working day (e.g. walking from office to kitchen or bathroom) becomes part of their workplace. You can still be prosecuted for failing to provide a safe workplace when it is the employee’s home.

As an employer it’s your duty to make sure all these places are safe. The only way to do this is via a proper safety assessment. What are the hazards? The risks? What can be done to eliminate/minimise them? Consider asking employees to complete a self-audit checklist of their home, ask them to send in photos of their work area, and (even if you never intend to use it) keep the option open to conduct a home visit.

Mental safety

More than ever since the pandemic, we are aware that safety goes beyond the physical. A 2020 survey conducted by Swinburne University of Technology found that some of the most common challenges of remote work included a blurred work/home boundary, trouble switching off, and loneliness. 

Whilst you may feel that where employees choose WFH they are responsible for keeping themselves mentally well, it’s not that simple. You are still responsible for their safety at work. At best someone who is a little lonely might be a bit disengaged at work and not meet their full potential. At worst, they will start taking sick leave, or possibly start a workers compensation claim.

Just like with physical safety, it’s your job as an employer to consider the hazards and risks of WFH as they affect mental health and do what is reasonable and practicable to eliminate or minimise those hazards and risks.

Surveillance

If you’re feeling a bit reluctant to have employees WFH on a permanent basis, perhaps you might see surveillance options as the answer. After all, surely it’s no different to watching what an employee is doing when they are in the office? 

While business owners have a right to protect the security of their property and information, employees also have a right to privacy. It is not the done thing to just start recording or watching your employee through the company laptop webcam, or monitoring what they are doing online during the day using keystroke technology or other methods. This could breach privacy laws and/or surveillance laws.

If you do plan to use some kind of surveillance you need to make sure you have a legitimate purpose, that you’ve told the employee what you are doing and gotten their consent.

Hours of work and pay rates

During lockdown WFH periods, there was a lot of give and take. This included employers allowing employees to work at unusual hours to accommodate needs to care for children during the day, or to share time in a home office with a partner/housemate. However, this kind of flexibility may have unintended consequences.

Where an employee’s work is covered by an award or other agreement, there may be obligations to pay overtime or penalty rates when working outside a specified spread of hours. For example, 7-7 Monday to Friday. This means that if you have an employee who likes working at 8pm for a couple of hours, and instead goes to the gym during the day for a couple of hours, that employee may be entitled to a higher rate of pay for those evening hours. You can’t avoid that obligation simply by saying the employee wanted to work those hours.

Be clear on what the hours of work are and the accompanying pay rates. Write your employment contracts to protect the business in these types of circumstances.

What to do

Once you understand your legal obligations you need to make sure you properly communicate how you are going to comply to your employees. The easiest way to do this is with a clear WFH policy and individual employment contracts that cover all these issues and others that may apply to your individual circumstances. Clear expectations always make for better employment relationships.