Employer Liability in Remote Working Arrangements – Do we need to risk assess homes?

ARTICLE

20 Aug 2020

The COVID-19 pandemic has imposed remote working arrangements for employees onto businesses which may not have ever considered such arrangements before COVID-19 forced their hand.  Whereas before remote working was a negotiable option which the employer and employee would discuss and negotiate, and which the employee could refuse, due to the ‘new normal’ brought on by COVID-19, the employer was encouraged, on the advice of the national Health Authorities, to make teleworking arrangements for employees, in the interests of their and the nation’s health generally.

Remote working has proven its many benefits both for the employer and the employee. However, despite having employees working outside the office premises there are certain employer duties which should nonetheless and at all times be adhered to.

The health and safety of employees is one of the many responsibilities of an employer. In the workplace, employers are required by law to protect the wellbeing of their employees. This principle is enshrined in the Occupational Health and Safety Authority Act (Cap 424 of the Laws of Malta), where the term ‘workplace’ is defined as any premises, place, facility, vessel or other thing or location, whether public or private, where work is carried out or to which the worker has access in the course of his employment...’. Therefore, the duty of care must always be exercised irrespective of whether the employee is working remotely or not.

Consequently, the General Provisions for Health and Safety at Work Places Regulations (S.L 424.18) impose on every employer the duty to carry out a suitable, sufficient and systematic assessment of all the occupational health and safety hazards which may be present at the place of work and the resultant risks involved concerning all aspects of the work activity. When carrying out such assessments, the employer is required to take into consideration changes to the work activities being carried out and to the workplace and shall take appropriate action.

Even though it may be difficult for employers to carry out traditional health and safety risk assessments at a worker’s home in the current context, the ‘Employer’s Guide on Working from Home in Response to the Outbreak of COVID-19' published by the International Labour Organization advises the employer to check that:

  • The work asked to be performed is one that can be safely performed from home;
  • Adjustments are made to the tasks, if needed, to ensure that they are safely doable when working from home;
  • Employees have the right equipment and tools to work safely at home, including the required protective or safety equipment, where applicable;
  • Arrangements are made to ensure the company’s equipment, if taken home to facilitate remote working, is accounted for and returned in the condition it was provided;
  • Employees have relevant information, instruction, supervision and training, including measures to deal with emergencies;
  • Reasonable accommodations are made for employees with disabilities in relation to the work they are required to perform from home; and
  • Arrangements are made for employees’ physical and mental welfare.

The health and safety responsibilities of the employer in a remote-working context, however, depend very much on the work assigned to the employee and the equipment provided by the employer. Although the Workplace (Minimum Health and Safety Requirements) Regulations establish the minimum health and safety requirements regarding the physical aspects of a workplace, such as the structural solidity of the building, fire safety and evacuation procedures, temperature and ventilation, this shall not apply in the case of temporary or mobile work sites. Therefore, an employer should not be liable for said matters at the employee’s home. However, an employer should still provide sufficient information and must encourage employees to take the necessary steps in order to ensure that their well-being is safeguarded at all times whilst performing their duties remotely.

Additionally, it is highly advisable that employers have a teleworking policy which covers occupational health and safety measures to prevent occupational injury, work equipment, the organization of working, working conditions and other work-related factors.

Furthermore, the employer should ensure the teleworking policy assumes no liability for injuries arising in the employee’s home workspace outside the agreed work hours or any loss, destruction, or injury that may occur to the home of the employee. This includes family members, visitors, or others that may become injured within or around the employee’s home.

While according to national legislation the health and safety of employees working from home remains the responsibility of the employer, the employer is not required to risk assess the employee’s home space. This does not mean that the employer is let off the hook from any liability for injury sustained by the employee whilst working from home. Said responsibility, however, in so far as health and safety is concerned, shall be limited to the work assigned including the nature of the work, its complexity and whether the worker has the necessary competence to carry out the task.