Coronavirus / COVID-19 and the workplace - Maintaining Employment Relationships With Remote Working

The Government today released information about how it proposes the country transition out of the present Level 4 Alert. Information about the parameters of changing Alert levels allows businesses to progress planning for how to operate in a changing environment. Importantly, the test for a business opening at Level 3 moves to it being safe, rather than being essential. In the meantime, it remains important for businesses to ensure that they are meeting obligations to employees, particularly those working remotely presently. We set out some practical advice to keep those discussions on track.

Government announcements of likely changes to transition from a Level 4 Alert

Government announcements today confirmed that:

• “Safe businesses” will be able to operate – the focus moving to whether a business is operating safely rather than whether a business is essential;
• For those who can work from home, you must remain doing so;
• Retail and malls will be closed, as with bars and restaurants, but collection options will be available;
• Attendance at schools will be available up to year 10, but voluntary, with distance learning encouraged.

In the meantime, organisations should already be planning for the resumption of business under a changing Alert Level, with an expectation of further announcements on Monday.

Good faith obligations

In the meantime, employers have ongoing obligations to employees. This includes good faith; communicating regularly with your employees. Practically, this means checking in with your employees on matters such as:

Change: How are they coping with any changing demands while working remotely? For example, are there any accommodations that would assist them to manage children returning to school and distance/home learning? 

Privacy: How are they coping with privacy issues? Do they remain able to work from home in a way that privacy, confidentiality and any commercial sensitivities with your business is maintained? If not, can any concerns be reasonably addressed? 

The Privacy Act requires that employers monitoring employees remotely must not do so in a way that is an unreasonable intrusion into an employee’s privacy. When employers collect personal information (such as remote monitoring of an employee's work), privacy expectations include that:

• Employees should be aware of the intention to collect information, and the purpose of collection;
• Employers should have secure processes to protect that information (including processes when an employee is working from home);
• Employees should be aware of the right to access and correct any inaccurate information.

Social media: Have you made clear your expectations around employee’s use of social media. For example, ensuring that employees are acting in a manner that protects the organisation’s commercially sensitive information?

Work-life creep: Are you helping to manage employee’s boundaries between work and home life? Are you ensuring that they are able to switch off from work, at a time when they’re working from home? Are they taking adequate breaks? Are you communicating your expectations about this?

Health and safety

As an employer (person conducting a business or undertaking), you have a primary duty under the Health and Safety at Work Act to ensure the health and safety of your workers and others affected by the work you carry out. This includes taking all reasonably practicable steps to isolate or minimise workplace risks. Employees also have obligations; to take reasonable care of their own health and safety and ensure that their actions do not cause harm to themselves or others. Where you have given a reasonable instruction, policy or procedure around how to work in a healthy and safe way, it is reasonable for you to expect compliance.

Importantly, employers should have been working with employees to ensure that their home work environment is a safe one. In addition to taking all reasonably practicable steps to eliminate or minimise harm that could come from workplace stress (such as an unreasonable workload), are you ensuring that they have a safe workspace? For example:

• Do they have the equipment they need to perform their work safely?
• Are they in a comfortable work environment, with lighting, and sound reasonably managed?
• Is the space free from hazards, ventilated, and (now we’re moving into more Autumnal weather, is it warm?)
• Are electrical cords safe, and have you managed trip hazards?
• Is their workload reasonable?

Employers should have been ensuring that this risk assessment has been undertaken and revisited during the lockdown, and be working collaboratively with employees who also have a responsibility for their health and wellbeing at work.{1}

Summary

Employers and employees will be working in a changing environment for a while yet, and in the meantime, need to ensure that employment obligations, including health and safety obligations, are maintained. We encourage businesses to be proactive in discussing matters with employees so that these can be addressed, and not escalate.  

If you have any further questions the specialist employment law team at DTI Lawyers can be contacted on 07 282 0174.

The information contained in this article as of the publication, but please note in this rapidly moving environment, you should review the DTI Lawyers website, or contact our team, to ensure it remains up to date.