With everything else that is happening in the world, the pandemic era is starting to fade from memory. But remote working is here to stay. That is borne out by the new Occupational Healthcare and Safety Act that entered into force on 19 November 2022, which lays down a more specific framework for employee and employer responsibilities in remote work arrangements.
The classic example is that of an employee sitting under a palm tree clattering away at their keyboard when a coconut hits them on the head. It’s an urban legend but in practice quite a thorny, real problem. How so? Such an accident used to be counted as an on-the-job accident according to the previous regulation. The new act however lays down the rules for organizing telework, which should avoid such absurdities.
First of all, an employee who is fond of working from home is no different from an employee who defies morning rush hour traffic to show up at the office. The employer must also ensure that the remote worker has appropriate work equipment, conduct regular health checks, pay compensation for sick days and investigate on-the-job accidents. However, the legislation provides for exceptions in the employer’s obligations that acknowledge that the employer has limited options in certain aspects of organizing work being done from home.
Risk assessment is not enough
One such employer obligation is to conduct a workplace risk assessment. The risk assessment must be based on the nature of the work, use of the workstations and work equipment, and risks related to the organization of work. If an employee is working from different locations (home, summer house, café or foot of a palm tree), the employer cannot in reality check all potential remote locations or assess risks there. Interviews, photos, video footage other documents, if possible, on-site inspections are possible. Yet without employee consent, risk assessments cannot be conducted in their home, because right to privacy is enshrined by the Constitution. Employers can draw up the obligatory risk assessment questionnaire, which must be filled in by every employee before they are cleared for remote work. The most general option is to recognize the risks related to remote work in a generalized form in the risk analysis. As to preparing the workplace risk assessment, we recommend consulting experts who can recommend measures for avoiding or mitigating health risks to employees.
Before clearing employees for remote work, employers must proceed from the risks and their health impacts and measures for avoiding harm to health. For office workers, that means instructions on the ergonomically correct work positions and techniques from electricity and fire safety requirements and instructions for refraining from contaminating the environment etc. It is wise to lay these down in the instructions in the internal work procedures or prepare as a separate set of remote work guidelines. It is particularly important to devote attention to measures for preventing risks associated with remote work. The corresponding supervision should be continued regularly to ensure that employees have sufficient knowledge for ensuring safe remote work.
Remote work locations to be furnished by mutual agreement
The parties must agree on how to design and furnish the remote work location. Essentially it is an agreement on who will buy a suitable desk and chair and other necessary office furniture. The employer does not have the furnish a location suitable for remote work if it already exists in the employee’s home, summer house or other location or the employee is willing to provide their own work location. Nor does the employer have to design a remote work location outside the employee’s place of residence, such as a library or café. To sum up, those interested in working remotely should consider that employers do not have to furnish remote work locations at the demand of the employee and employers do not have the right to demand the same of the employee. If the parties fail to reach agreement on furnishing a remote work location, then working remotely should not even be under discussion.
To balance the employer’s obligations, the employee is obliged to ensure, in line with the employer’s guidelines, safety and suitable work conditions in their own work location. The employee’s occupational health and safety obligations do not release the employer of appropriate liability, except for limitation of liability if the employer has done its utmost but the employee has disregarded the guidelines. All of the above means that if the employer has instructed the employee to avoid sitting beneath a palm tree while working remotely and the employee ignores this, the employer cannot be held liable for any injury suffered due to a falling coconut or failure to prevent an on-the-job accident.