With the pandemic having driven so many people into remote access and a rash of compensation claims for injuries sustained while working away from the office, it’s a good time for employers to review their policies and WHS procedures for personnel engaged in telework.
Working from home makes sense for more and more employees and their employers now that so much work is computer-based and remote access to workplace data systems is routine. But the mass migration to home-based work due to the pandemic has thrown a spotlight onto the risks as well as the benefits.
There are many advantages to having staff work from home. Flexible working procedures and technologies can attract and retain workers, and staff turnover costs can be reduced if workers are able to achieve a better work-life balance by cutting out hours wasted commuting and being on the spot when children come home from school or are available for aged parents needing help. Staff can be equally or more productive when working from home without the distractions of colleagues nearby, and if some staff always or usually work from home, employers may be able to manage with smaller premises or less office space, economising on costs.
Employer’s liability for staff injured while working away
There are two aspects to the employer’s responsibility toward staff working from home, or on a work break while working from home, or otherwise away from the office in the course of employment. One is essentially preventive – the employer’s obligation to anticipate and mitigate any foreseeable health or safety risks to which the staff member may be exposed. The other is the employer’s liability for a work-related injury the staff member may suffer in those situations.
The employer’s liability for injury has had a higher profile, as claims for workers’ compensation have received more public attention than any WHS prosecutions in such cases.
In one case that came to public notice, a woman was eventually compensated for an injury she received while having sex with a friend while staying at a motel in a country town for work purposes. Her application for compensation was initially rejected, but she took the relevant authority to the Federal Court and the judge ruled that the injuries were suffered in the course of her employment, considering that there was no misconduct or any intentionally self-inflicted injury, and that sex was ‘an ordinary incident of life’ commonly undertaken in a motel room at night, just like sleeping or showering.
The woman’s barrister noted the absence of any rule that employees should not have anyone else in their room. The judge found that it was not necessary for the woman to show that the activity that led to the injury was one that had been expressly or impliedly induced or encouraged by her employer. Previous cases were cited, including a case in which compensation was granted to a worker who slipped in a hotel shower.
Work break injury while working from home
In other cases, compensation claims for injuries suffered on work breaks while working from home have been rejected.
In one instance, a television presenter working from home broke her hip while out jogging on what she claimed was a work break, but the insurer denied liability, arguing that her definition of ‘place of work’ was too broad and that a ‘sporting injury’ was not compensable.
Her insurer had paid out in the past to workers injured during lunch breaks or even jogging to and from work, but had recently cracked down hard on such claims. The claim failed, largely on the grounds that a jog at 9.30am was not an ‘ordinary recess’ from work, which should be restricted to more structured and sanctioned breaks such as lunch. The judge said that a work break taken on an ad hoc basis during the work day is not an ‘ordinary recess’.
Business equipment or data damaged
Employers should check that their general property insurance covers business equipment such as laptops or mobile phones, no matter where they are used. Items valued above $2500 usually need to be specified, enabling employers to ensure their equipment if staff use it at home.
Some employers require their staff, before working from home, to check whether their home and contents insurance policy covers damage due to work carried out at home, such as a spark from welding causing a house fire, or work-related information being compromised if the staff member’s computer is hacked or infected with a virus while working from home.
Employers’ WHS responsibilities
Employers are responsible for providing a safe workplace. Before permitting staff to work from home, employers should ensure a worker complies with company WHS policies. This is often done by having staff complete a working from home safety survey or checklist.
Over and above such measures, employers should do what is reasonably practicable to monitor workers’ well-being, and manage the risks of any foreseeable illness or injury.
