Australia: When the workplace falls outside traditional walls

What you need to know

• It is common for workers in the healthcare sector to undertake their work outside the physical boundaries of traditional workplaces such as hospitals, doctors' surgeries or aged care homes.
• When employees are working remotely or in unconventional environments, employers are faced with a range of risks that must be appropriately managed, including work health and safety and data security risks.
• To address and reduce these risks, it is critical for employers to take the right steps at the beginning of the employment relationship and arm their employees with the right tools and information to safely undertake their work in these uncontrolled workplaces.

Most workplaces have clear physical boundaries – they are enclosed by four walls and contain all of the tools and equipment, from filing cabinets to support services, necessary for employees to complete their work. At these traditional workplaces, employees perform their duties in conventional workspaces and generally between the hours of 9 to 5.

In the health and aged care sectors, the 'office' looks very different for those who provide in-home patient care and services outside the boundaries of traditional healthcare facilities. In view of the recent shift in policy toward a consumer-directed market for home care services and the likelihood of further reforms in health and aged care, the sector's ability to provide services beyond the four walls of a surgery, hospital or aged care home will continue to play a pivotal role in meeting the needs of Australia's ageing population.

In this article, we highlight some of the issues employers should consider when managing workers who provide in-home services and operate in unconventional working environments.

1. Get it right at the beginning

An effective induction is a critical part of the process in ensuring workers are aware of the policies, procedures, responsibilities and obligations integral to managing the multitude of risks which may arise in an unconventional workplace. While a traditional face-to-face on-boarding process is ideal, employers need to be equipped to provide an engaging and interactive online solution where this is not possible.

As part of the on-boarding process, employers must plan ahead. What happens when the induction materials are updated to reflect changes in law, policy or best practice and employers have an obligation to provide training to workers on these changes, such as under work health and safety laws or to minimise the risk of vicarious liability if there is a finding of sexual harassment?

In traditional workplaces, employers can easily provide access to these materials by way of an intranet site and facilitate in-house training at their premises. However, for the remote workforce, it is administratively burdensome for employers to be in a position where they are constantly required to send revised materials to workers and track acknowledgments that such materials have been received and understood, and practically difficult to facilitate attendance at training sessions.

Therefore, employers should ensure that they provide workers with portable devices and any other tools necessary to access cloud-based e-learning programs and have the power to compel remote workers to attend training sessions by including specific obligations in each worker's contract of employment. In this way, if an employer takes disciplinary action against a worker for refusing to abide by policies and procedures or comply with a direction to attend a training session, and the worker challenges the lawfulness or reasonableness of such a direction, the employer will be better positioned to defend any claim which may arise.

2. Manage work health and safety risks

Employers have a primary obligation to ensure the health and safety of their workers while they are at a 'workplace'. A 'workplace' is defined under work, health and safety laws as a place where work is carried out, including any place where a worker goes, or is likely to be, while at work. Where a worker is required to provide at-home services, it is clear that the care recipient's home constitutes the worker's 'workplace'.

In order to meet the primary work, health and safety obligation, employers are required to:

• provide and maintain safe systems of work, work premises, and work environments
• make adequate facilities available to workers
• provide information, training, instruction or supervision necessary for workers to perform their duties safely
• monitor the health of workers and the conditions at the workplace for the purpose of preventing illness or injury

So, how does an employer meet these obligations in respect of those workers who are 'out of sight' and performing work at a multitude of 'workplaces' in one day?

There is no doubt that one of the first, and also one of the most challenging, steps for an employer is to identify the inherent risks likely to be encountered by workers in these unconventional environments. This requires an employer to conduct regular risk assessments, particularly when a care recipient's needs change.

Having identified the risks, an employer can implement control measures to eliminate or minimise the risk, such as:

• pre-employment or pre-placement medical assessments to assess a worker's fitness for duty
• training on safe work procedures, including in relation to manual handling, minimising slips, trip and falls, responding to patient aggression, exposure to hazardous substances, infection control, and emergency response procedures
• tools and equipment necessary to perform duties safely, for example, remote duress alarms or emergency GPS beacons where workers are providing services to aggressive patients
• access to clear reporting lines to enable hazards to be notified to management in writing and/or orally
• maintaining an incident register to monitor patterns of injury and for use in analytical tools
• post-placement and exit interviews to give workers an opportunity to provide feedback on hazards and risks

In addition to clear processes, procedures and guidelines, it is essential that employers facilitate an open and inclusive environment and emphasise a 'safety-first' culture through reward and recognition in order to encourage workers to proactively identify and promptly report hazards.

If an incident occurs or a complaint is received, then employers must conduct a thorough investigation and take corrective action swiftly. In conducting the investigation and proposing recommendations, employers should not only consider direct causes of injury, but also broader contributory risk factors. These risk factors might include workload, accessibility of appropriate equipment, supervision and job design.

2. Protect confidential information and data security

As the channels for sharing data become more decentralised with the growth in remote work and telehealth services, employers need to ensure their security controls respond to the risks associated with the storage and transfer of sensitive information on portable and BYO devices. The management of these risks is critical in the healthcare sector because health information is subject to stricter privacy laws. The digitisation of health records has also made health information more vulnerable to being intercepted or stolen by third parties.

For remote workers, mobile devices like smartphones, tablets and USBs have become portable repositories of sensitive information. In particular, health professionals are increasingly using these devices to record and share patient data in the diagnosis and management of medical conditions (for more on this, see our article on the use of smartphones in daily medical practice).

It is also not uncommon for remote workers to access sensitive information from a mobile device using an unsecured wifi network in an airport, hospital or cafe. Accessing information in this way can compromise the security of the information stored on the device by making it accessible to anyone within range.

Employers need to implement appropriate controls to manage these data security risks, for example by:

• ensuring workers connect to the corporate network using a virtual private network when they are working offsite
• encrypting sensitive information which is stored on portable devices or which may be transmitted over unsecured networks
• addressing the specific risks associated with remote work in internal policies, including the introduction of policies and supporting security software to allow the business to remotely wipe data on personal devices in the event of loss or theft.

Key takeaways

When workers undertake the majority of their work outside the four walls of a workplace, employers need to be proactive in identifying and managing unconventional risks in order to capitalise on the opportunities of a flexible, responsive and sustainable healthcare sector.

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories