Employment rights and obligations while working from home during COVID-19
As the ongoing COVID-19 crisis continues to cause major disruptions to Australian workplaces, those workers able to keep their job are being encouraged to work from home where it is possible to do so. With it becoming increasingly common to work from home, it is important to consider the legal implications that may arise when moving from your office to your home office.
Safety of ‘home office’ environment
Every employer has work health and safety legal obligations to their staff depending on the legislation in each State and Territory. Workplace health and safety laws will still apply to the worker’s home office environment.
Employees should expect employers to ensure that their home office arrangement provides a safe and healthy work environment. This would include ensuring each worker:
- has an ergonomic environment to work in to minimise the risk of any injury;
- is provided with appropriate hardware and equipment to be able to perform their role;
- has appropriate workloads and that their wellbeing is monitored, considering workers will not be under direct supervision; and
- each worker has their home office environment monitored to make sure it meets their needs for effective work including mitigating the risk of injury.
Workers compensation scheme remains available to those working from home
Further, whilst each State and Territory has their own Workers' Compensation scheme, when injured whilst working from home a worker could still be entitled to receive worker’s compensation even where they are away from their usual workplace.
This would include a scenario where an employee was exposed to COVID-19 in the course of their employment. For more information about workers compensation claims during the coronavirus pandemic, visit COVID-19 and Workers’ Compensation.
Can I request to work from home?
Due to the threat of the virus on the community, you may be concerned about continuing to travel to and from work to attend your workplace during the day or you may have family obligations requiring you to work from home.
If you are in a situation similar to this and you have not received a direction from your employer or been allowed to work from home, you may consider the following.
- If the duties of your job are compatible with working from home you should first consult any applicable enterprise agreement, award and/or employment contract that applies to your workplace.
- You should also check your company’s ‘Working from Home’ or ‘Flexible Working Arrangements’ policy if they have one.
- If the employer does not have relevant polices or working from home is not covered under your contract or any award or agreement, you should discuss the matter with them about what their position is and any concerns you may have.
It would be sensible, in these times, for employees and employers to come to a mutual arrangement about working from home.
As Federal Government advice is currently to work from home if able to do so, it would appear a reasonable request to be allowed to work from home. However, there have been instances, such as many Public Service workers across Australia, where requests, including by unions, to do just that have been ignored by employers seemingly contrary to government advice.
What can I do if my employer is being unreasonable about working from home?
If something like this occurs, an employee may be able to refuse a direction from their employer if they have a reasonable concern about a risk to their health and safety. However, anyone in this situation should first seek immediate legal advice from their union or a lawyer experienced in employment law. Any refusal to adhere to a direction risks disciplinary action being taken, up to and including dismissal.
The first option should always be to try and come to a mutual agreement with your employer on an appropriate arrangement.
Can I be forced to work away from the office?
Your employer may require you to isolate from the workplace to avoid a potential spread of the virus. If your employer issues a direction for you to work from home which you do not want to do or unable to follow (for example due to family or safety reasons), you need to consider if the employer’s direction is lawful and reasonable under the circumstances.
For information on isolation and your employment please read our “Implications of Coronavirus for your Employment” blog post.
If an employer directs you to work from home in response to COVID-19, they would also need to comply with any enterprise agreement, award or policy. There are currently instances of unions and employer’s applying to the Fair Work Commission to increase award flexibility and this may affect advice in certain industries.
An employee cannot refuse a lawful and reasonable direction of their employer. Bearing in mind that further government restrictions continue to be placed on peoples’ movements and an employer’s duties and obligations to reasonably manage workplace risks (such as the spread of the virus in the workplace itself), it is likely that if you are told to work from home, such directions from an employer would have to be complied with until restrictions are eased.
If you have any doubt, you should urgently seek legal advice.
Don’t forget if you have other queries related to COVID-19 and your employment, please read our blog posts "Implications of Coronavirus for your Employment" and “COVID-19 and Worker’s Compensation”. COVID related content on our site is being updated as the advice or information changes.
Legal advice and assistance continues during COVID-19
We continue to provide our client services during the coronavirus outbreak.
Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary.
You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.
Phone: 1800 659 114
This article relates to Australian law; either at a State or Federal level.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.