The Coronavirus pandemic has seen a surge in Australian employees working from home to implement social distancing measures with many employers having to rapidly react to the change in working environment.
From midday on Monday 23 March 2020, the National Cabinet implemented a Stage 1 shut down of non-essential activity across Australia. On the evening of Tuesday 24 March 2020, the National Cabinet imposed further restrictions on non-essential venues and activities and implemented a Stage 2 shut down. In Victoria, these new measures came into force at midnight on 25 March 2020. (A full list of restrictions and closures is available here).
As a result of the shut downs implemented by the government, the question that we are being commonly asked is whether an employer can require an employee to work from home.
Can an employer require an employee to work from home as a result of the Coronavirus?
Unfortunately, there is no definite answer to this question as it depends on a number of circumstances that are particular to that employee, such as their position and role within the employer’s organisation.
If an employee is working from home, what obligations does an employer have?
The Coronavirus has highlighted the legislative obligations of an employer to:
- maintain a workplace that is safe and without the risks to the health of employees and others, so far as it is reasonably practical to do so; and
- if it is not reasonably practicable to eliminate risks to health and safety in the workplace, to reduce those risks as far as is reasonably practicable.
Employers must not only consider their legislative health and safety obligations but also other employment obligations including those arising under the Fair Work Act 2009 (Cth), discrimination, equal opportunity and privacy laws as these are also relevant when considering whether an employee may be requested to work from home.
Common issues for employers managing employees working from home
In our experience, common issues for employers include:
- Whether an employer is required to pay for an employee’s internet access at home?
- What resources an employer is reasonably required to provide to an employee to work from home?
- Whether an employer can change the employee’s hours of work?
- What steps an employer must reasonably take to ensure that an employee has a healthy and safe working environment at home?
- Whether an employer’s insurance will protect the interests of the employer if the employee sustains an injury whilst working from home?
- What steps an employer should have in place so that an employee is given appropriate work and to also minimise the likelihood of any discriminatory behaviour towards an employee working from home?
Tips for Employers
- The employee’s employment contract should be reviewed as it may contain provisions about whether an employee can be requested to work from home, any equipment and services (including internet) an employer may provide and the allocation of any costs for providing such equipment and services to the employee. Awards and Enterprise Agreements relevant to an employee’s employment should also be reviewed as they may contain relevant provisions.
- Employers should ensure that all workplace policies and procedures are current. Particularly, occupational health and safety, discrimination, leave, grievance and dispute resolution, privacy and confidentiality of company information/documents.
- As employers may be held vicariously liable for the conduct of their employees who discriminate against other employees, they should remind their employees that discriminatory behaviour is unlawful and will not be tolerated in the workplace, and that the workplace includes employees working from home.
- All arrangements with an employee to work from home must be documented and kept up to date so that an employer can monitor the employee’s capacity to work from home and change the working arrangements of the employee, if required. This will be particularly important if the employee is directed to work from home as a result of illness or becomes ill whilst working from home.
Please contact our Workplace Relations Team should you require assistance in respect of the matters discussed in this article or any other queries arising from the impact of Coronavirus on workplaces and its employees.