Working from home: The OHS trap for employers

This article first appeared October 27, 2011.

Technological advances, avoiding the commute, a break from office dramas and tedium: it’s no surprise more workers are asking to work from home.

For businesses trying to be an employer of choice and keen to retain key employees, particularly senior women, flexible working arrangements can deliver a competitive advantage.

But a recent ruling forcing Telstra to compensate an employee working from home who hurt her shoulder after falling down a flight of stairs is food for thought for businesses keen to be adaptable.

Telstra employee Dale Hargreaves in 2006 fell down the stairs twice while on break at home.

The Administrative Appeals Tribunal found in June this year that Hargreaves’ injuries had occurred in the “course of employment”, and she was therefore eligible for compensation under the Safety Rehabilitation and Compensation Act 1998.

The AAT also found that Hargreaves’ psychiatric condition or ailment – she later developed depression and anxiety – was caused by issues involving her return to work plans and she was entitled to compensation under the Act.

Telstra was ordered to pay the cost of all medical and related treatment expenses, and weekly compensation payments “in respect of incapacity for work for all periods when Ms Hargreaves’ ability to earn was less than the normal weekly earnings,” as well as costs related to the action.

Freehills partner Kate Jenkins says the Telstra decision is a “pretty frightening one for employers”.

“The line between personal and work has really become quite blurred,” Jenkins says.

“Twenty years ago it was quite clear – when you were at work, you were at work. The lines didn’t overlap like they do now.”

A harsh lesson for SMEs

Rae Phillips, founder and director of human resources consultant Inspire Success, says the ruling provides a message to small- and medium-sized business that they need to be proactive and organised when it comes to flexible work arrangements.

It might be as simple as a paragraph detailing the responsibilities of employers and employees, she says, or as complex as an extensive agreement which delivers rights of entry for the employer to inspect the home.

“You really need to sit down and agree who is paying for what, who is providing what, how much responsibility the employer has,” Phillips says.

Allens Arthur Robinson partner Simon Dewberry says there’s always been a limit between what is considered an employer’s responsibility versus an employee’s responsibility – but this case went beyond many people’s expectations.

“It’s just that somebody thought the limit was someone walking around in socks and falling down the stairs,” Dewberry says.

He says the ruling is something employers should take into account while weighing up working from home requests, but it cannot be used as an excuse to reject them.

Employer working from home obligations

Kate Jenkins of Freehills says the issue came to prominence a couple of years ago when the Fair Work Act encouraged businesses to accept flexible working arrangement requests – such as working part-time, job sharing or working from home – unless there are reasonable business grounds to reject them.

The onus on business is higher when the request is driven by the employee’s carer responsibilities. Companies must also be cognisant that refusing a request for flexible working arrangements might breach state and territory discrimination laws.

Industrial relations experts are quick to point out that the increased focus on working from home has not just been driven by legislation, or employees for that matter, but because employers recognise the benefits of flexible workplace arrangements – from happier workers, to improving your appeal to prospective employees and having “fresher” part-time workers rather than worn-out full-time staff.

“It’s hard to get away with being a model employer without including this,” Dewberry says.

Advocates also point out that technology enables that old concern about employees working from home – that the individual might slack off – to disappear. You may not be able to look over someone’s shoulder anymore, but employers can easily figure out if productivity or work quality is dropping off through regular emails, phone calls and deadlines.

An OHS minefield

Experts say as working from home requests and the use of contractors become more common, the occupational health and safety mind-frame needs to be extended beyond the office to the home.

“It’s not just is this person’s office safe [these days], but is this home safe?” Dewberry says.

“And the obligation to OH&S extends beyond employees. If you have contractors working from home or in a home office and one of them zaps themselves or gets their hands struck in the shredder, your obligation is no less.”

One thing to keep in mind that it is not just the working area that needs to be safe in a home office, but also facilities such as the kitchen and bathroom.

What to do

When faced with a request to work from home, Kate Jenkins from Freehills says business should start the process by thinking about the employee’s role, the barriers to it being performed effectively from home, and how those barriers could be overcome.

AAR partner Simon Dewberry says in some circumstances, “it’s possible that because of the nature of the work that the person is doing, the risk to health and safety is so high that you could justify rejecting the request on that basis.”

“But my expectation is that most employers will take that into account and deal with it in the way they deal with any risk-management issue,” he says.

Kate Jenkins and Freehills partner Harold Downes and Freehills solicitor Kathryn Bion have more advice for companies facing work from home requests:

• Consider a trial before making a commitment.
• Put your decision-making process, and arrangements, in writing.
• Set up a broader policy to be used company-wide.

Experts contacted by SmartCompany have mixed views on whether an employer needs to send in an OH&S person to inspect the home and see whether a workspace is set up before approving a work from home request, or whether a check-list signed by the employee is sufficient.

Rae Phillips says although Inspire Success generally sets up the home office of its employees, who all work from home, it gives employees a checklist for self-audit rather than send someone in to tick the boxes.

This checklist – which confirms there is an appropriate desk, chair and lamp, for example, and that electrical cords have been tagged and tested – must be completed and handed back.

“They’re making a commitment they have a safe work environment,” she says, adding that home lighting is another issue that ought to be covered off.

“For a larger business with a lot of people, maybe in that situation it’s practical to have inspectors. But for a small business, it’s not as practical.”

Phillips adds that although Inspire Success hasn’t conducted an inspection of a home office, she knows others companies do – perhaps every six months, or annually – as part of a broader discussion on employer performance.

But Jessica Fletcher, senior associate Hall & Wilcox, says it’s more prudent for a company to do its own assessment, and this should include the workplace layout, laptops, lighting, thermal, ergonomics, ventilation and electrical safety.

Another issue to consider is whether an employee feeling under the weather and therefore unable to head into the office should be permitted to finish off a few things at home before going to the doctor or bed.

There are obvious attractions of this practice. The employee avoids going into the office, and gets key jobs out of the way so they don’t have to play catch up when they return. The employer isn’t caught with one less worker, and doesn’t have somebody spreading germs around the office.

But Jenkins says companies should think twice about permitting an ill employee to do a little bit of work from home on their day off without considering the OH&S ramifications.

“From an OH&S point of view, and from a workers’ compensation point of view, there is a risk,” Jenkins says, despite the pragmatic view that 30 minutes’ work now can save hassle down the track.