For large numbers of businesses, closure and lockdown measures have meant that the only way of keeping trading and staying afloat has been to ask staff to work from home. But are there risks? And, if so, what precautions should be taken?

Disappearance of obstacles to working from home

In these days of effortless remote connectivity, many practical obstacles which restricted working from home in the past no longer exist. While, twenty years ago, employers occasionally allowed staff to work from home, this rarely worked very well: only "back office" employees could effectively do their jobs from somewhere other than their usual workplace.

Even where it was feasible to work from home – say for someone whose job it was to keep books of account – this would usually require that files or similar materials had to be taken home; and this, even if practicable, might have posed a risk to the security of those records.

Employers historically distrustful of work from home arrangements

Fairly obviously, work from home arrangements were pretty much always requested by employees with family or other circumstances making it hard to manage nine to five attendance.

Distrustful employers believed staff would only work well with the boss's eye on them, and were thus reluctant to permit this, even though research has show fairly clearly that (as with job-sharing, another flexible work mode originally met with resistance) productivity was generally greater, with employees working from home not necessarily insisting on "clocking off" at five pm.

Flexible work patterns recognised by the Fair Work Act

Much has, of course, changed since then. The interest of employees in having flexible work patterns is now recognised by the Fair Work Act 2009 (although this mainly refers to hours and patterns of work rather than to the location of the workplace) and, as has been said, technology now allows a wide range of jobs and work to be carried out remotely, frequently in ways which would be undetectable by consumers or colleagues, and without risks to data or records.

Most obviously, since our lives have radically changed as a result of the coronavirus, it is now the employer, as much as the employee, proposing a work from home arrangement.

But are there still risks?

What happens when the workplace is the home?

Even when working from home first started, there were two legislative regimes whose operation raised questions about what happened when the "workplace" was not an office, shop or showroom, but the home.

These were workplace safety (then "OH&S"; now "WHS"), and workers' compensation.

Work health and safety responsibilities of employers

In NSW, work health and safety is governed by the Work Health and Safety Act 2011 (WHS Act). Section 8 of the WHS Act defines "workplace" as a "place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work".

The employer is the one who conducts the "business or undertaking" and has, under section 20, a duty to ensure, "as far as is practicable", that there is no risk to the health and safety of "any person" arising from the workplace, or from entering or leaving it.

This duty cannot be delegated to anyone else. Indeed, subordinate managers and workers themselves must do their best to see that the "boss" complies with this obligation. And "any person" means just that: any person lawfully present in the workplace, and not just an employee.

Endorsement of work from home arrangements by employers

The risk is obvious. If an employee who works from home suffers an electric shock from a toaster, or a scald from a jug, while taking a break, these are things which are "reasonably practicable" to avoid, potentially putting the employer in breach of its duty under section 20 of the WHS Act.

A home does not become a workplace just because some employee decides, unbeknown to the employer, to take a few files home to work on them while watching TV. But if the employer has endorsed the work from home arrangement or – more likely at the present time – told the employee to do this, the home will be a workplace.

Workers' compensation and work from home

Workers' compensation is, as is well known, legislatively-based insurance for workers injured at work. (The NSW Workers' Compensation Act 1987 (WC Act) uses "injury" to describe any damage to health, including illness; and whether the damage is physical or psychological.)

By section 9A of the WC Act, a workplace injury is compensable if the work being done by the employee was a "substantial contributing factor" to the injury.

While the WC Act does not make specific reference to the "workplace" in the same way as does the WHS Act, the result is pretty much the same: if an employee is working from home at the direction of, or with the endorsement or acquiescence of, the employer, an injury suffered in the course of doing the work will be compensable.

Injuries suffered in the course of employment

The question of whether an employee taking an exercise break who suffers an injury is covered by workers' compensation is in essence little different from that of the employee who falls over during a lunchtime walk to the sandwich shop, but this is an issue requiring rather more discussion than can be provided here.

However, it's relevant whether this is part of a usual and more or less necessary routine. (A decision, made many decades ago, awarding compensation to a worker injured in a lunchtime rugby league competition between NSW government departments, would probably not be repeated today.)

Insurance premiums affected by accepted workers compensation claims

That employees who work from home are covered by workers' compensation is, from the point of view of the employee, a benefit rather than a problem. The WC Act is deliberately written to prevent the exclusion of claims simply because an employee, while doing work, was doing it at some atypical time, or some atypical place; as long as the duties of the job were being carried out.

However, insurance premiums are affected by accepted claims, and insurers investigating claims may well ask whether adequate precautions were taken, in respect of a specific work from home arrangement, to guard against the happening of the event giving rise to the claim.

Make sure employees understand home is now a workplace

The issues discussed above are not reasons for shying away from work from home arrangements – far from it, especially in the current circumstances, when turning to such arrangements may mean the difference between survival and failure of a business. It's just that, as a matter of diligence and risk management, business operators should be aware of the risks surrounding new arrangements.

Not least of these will be to ensure that employees understand, very clearly, that their homes will be workplaces and that, while this may in some circumstances permit attending work in one's tracky-daks, does not extend to condoning the balancing of a boiling cup of tea on a knee, in a way that would not be done in the office.

Setting aside part of the house for working from home

Most people who use computers frequently will have some part of the house set aside for that purpose and, the more closely it resembles an actual workplace, the better.

In summary, the information here is for general guidance and to provide alertness to issues. While both work health and safety and workers compensation legislation is broadly similar between states and territories, it is not identical in all respects to that in NSW, so checking will be required.

And, if there's any doubt your business's work practices are compliant, it's always wise to get legal advice. (For more information, please see Your staff are all working from home – so what are your health and safety obligations as an employer?)

Geoff Baldwin
Employment law
Stacks Champion

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.