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Coronavirus and directing employees to work from home: examining an employer's duty of care (by Dr Gabrielle Golding)

21st April, 2020

I’m very pleased to publish this first guest contribution on the Labour Law Down Under Blog, by Dr Gabrielle Golding – Lecturer in the Law School at the University of Adelaide. Other guest contributions are invited from the academic community, especially on issues relating to the impact of COVID-19 on work, workers and the regulatory framework for employment relations. Email me at: anthony.forsyth@rmit.edu.au

In the present wake of the Coronavirus outbreak, many employees have been directed by their employers to work from home. The question I pose here is: what impact might such a direction have on an employer’s duty of care that is owed to its employees? In other words, what is the nature of the duty owed, and to what extent is the duty owed to employees who are now told to work from home in this seemingly ‘new normal’ environment?

Nature of the duty owed

It is well-established that an employer owes its employees a duty to provide a safe place of work at common law, as well as under statute.

At common law, this non-delegable duty exists in both the tort of negligence, as well as in contract by way of an implied term, such that both duties are often treated as coextensive and correlative. In Astley v Austrust Ltd, the High Court of Australia confirmed that contractual and tortious duties of care can coincide, such that the availability of one will not displace the other. Indeed, if an employer’s negligence is found to be responsible for an employee’s injury or illness, then the employee may—subject to workers’ compensation provisions in the relevant jurisdiction—sue for damages in either breach of contract, or in the tort of negligence. Clearly, the employee would seek the most favourable judgment that may flow from either cause of action.

Separately, under the Work Health and Safety Acts that apply at the Federal and State/Territory levels, and are based on a uniform ‘Model Act’ (albeit with some slight differences across certain jurisdictions), there exists a ‘general duty of care’ to protect employees’ health and safety at work. Such a duty is similarly non-delegable and framed to impose an obligation on the employer, based on what is ‘reasonably practicable’. This statutory duty is substantially similar to those owed at common law, but not entirely identical.

The question of whether an employer has breached its duty of care, irrespective of whether it is pursued as an action in tort, contract or under statute, will depend on the facts of each case. At common law, the court will consider whether a reasonable person in the employer’s position would have foreseen a risk of injury to the employee. Under statute, the court will need to consider whether, as a general duty, a ‘Person Conducting a Business or Undertaking’ (which would tend to include an employer) has ensured, so far as is reasonably practicable, the health and safety of any workers that they have engaged or caused to be engaged, or whose working activities they have influenced or directed, while at work in the business or undertaking.

Extent that the duty is owed to employees now working from home

As to the extension of the duty to employees working from home, the general understanding of its application is relatively straightforward: the duty—whether its origins be in tort, contract or under statute—is still owed, irrespective of where the employee’s work is being carried out. Quite simply, it extends in the same way to all work carried out by an employee, even if that work is directed to be performed at home.

Practically speaking, this could include an obligation on an employer to ensure that their employees’ home workspaces are ergonomically suitable and free from trip hazards. An employer might also ensure that their employees have a home first aid kit, a safe path to an exit in case of a fire, along with suitably equipped smoke detectors and fire alarms. In saying all of this, it is an implied obligation of an employer to reimburse employees for expenses innocently incurred while conducting work at home, which could include subsidising the costs of these measures, and even extend to payment covering employees’ extra internet and electricity use.

Perhaps, less obviously, working from home may result in employees feeling increasingly isolated, which in turn, may have negative impacts on their mental health and wellbeing. This threat, stemming from social isolation, may well encompass a further component that falls within the scope of an employer’s duty of care. With that in mind, employers may need to reconsider ways in which the requirements of physical distancing are balanced with continued communication and active social engagement with their employees via online platforms.

While many (particularly larger) employers may have already implemented a ‘working from home’ policy prior to the pandemic, which addresses methods of safely working at home, some employers may still be in the process of doing so. Where that is the case, the most efficient policy implementation could well be a ‘self-check’ method; in other words, a policy which requires employees to verify with their employer that their work space at home is, indeed, a safe one, adhering to certain safety minimums, such as those mentioned earlier. Employers may even go a step further than this, requiring employees to visually demonstrate, via video link, as to how their home work space is safely set up.

An employer may also wish to ensure that they have met their duty of care by arranging dedicated ‘working safely at home’ training for employees via an online platform, like Zoom. From a legal standpoint, it is well-established that satisfying that a duty of care has been met to the requisite standard can be bolstered where the employer can demonstrate that they have conducted appropriate safety training with their employees.

On the whole, for employees directed to perform work from home, while there are certainly changes in manner in which their work is conducted, it is important for both employees and employers to be aware that an employer’s duty of care will extend to employees in exactly the same way, and that some additional considerations, such as those listed here ought to be taken into consideration, so as to minimise what is arguably a far heightened risk of breaching a duty of care in what is a largely uncertain and unprecedented environment.

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