This article covers some of the most important points that all employers must consider whilst enabling employees to continue to effectively work from home.
It is no secret that 2020 has been a very difficult year. To say the least. Forcing us out of our comfort zones and into positions of uncertainty and discomfort.
With the global lockdown happening as dramatically as it did, businesses had to find a way to keep their ship afloat… and for all intents and purposes to “keep on keeping on”. This resulted in the workplace moving from building to dining room table and from board meetings to Zoom calls.
But there is no denying that working from home helped businesses improve their productivity, lowered their overhead costs and helped to curb the spread of the virus – raising questions as to whether the physical workplace is still necessary and whether all staff members were still required.
But all these measures have had their own degrees of both successes and failures. Here the discussion around the legal ramifications of working from home vs just straight up common sense and reasonability, come into play.
Practically, it has caused difficulty from a number of perspectives – can working from home be considered a “workplace environment” and if so, do the rules of your company still apply to you when you are at home? And under the Occupational Health and Safety Act 85 of 1993 (OHSA), which ensures safe and healthy working conditions for employees, how does a company go about enforcing this in each individuals home?
Those are only the start of some of the questions which have been raised during this whole work from home saga.
Although we may have entered into a softer lockdown (being on Level 1 since 20 September 2020), we are still far from being completely free from the impact of Covid-19. And this means that businesses will still have a lot of adapting to do to embrace the so called “new normal”.
How does this work practically speaking?
Firstly, the question as to whether an employee’s dining room table can be considered a “workplace” comes into question. Why is this relevant, you may ask? Well this may have an impact on whether or not a company’s policies can still apply to the employee whilst working from home.
To answer this question, we turn to the Labour Relations Act 66 of 1995 (LRA), which at Section 213 defines “workplace” as –
“…(c) in all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation.“
Whilst this may seem that an employee’s dining room table may be considered a workplace, the Constitutional Court matter of Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others  7 BLLR 641, provides a contrary opinion, which sets out (briefly) as follows –
“’workplace’ is not the place where any single employee works – like that individual’s workshop or assembly line or field or desk or office. It is where ‘the employees of an employer’, collectively, work”
“location is not primary: functional organisation is. The definition encompasses one or more ‘place or places where employees of an employer work’. This means that ‘the place or places’ where workers work may constitute a single workplace”.
Therefore, practically speaking (and according to the LRA), an employee’s dining room table must be considered an independent operation in terms of size, function or organisation and must include elements of workers as a collectivity for it to be considered a “workplace” in terms of the LRA.
Whilst you may be working independently and away from your office desk, your dining room table does not constitute an independent operation where workers work collectively (despite the huge amount of Zoom, Skye or Microsoft Team calls that you may have throughout your day).
What this essentially means is that a person’s home is not considered a “workplace” in terms of the LRA.
How does this affect me?
Well, strictly speaking and if one were to apply the interpretation as included above, an employer cannot enforce its workplace rules and standards on an employee who is working from home.
In what way?
An employee may not have to adhere to a dress code and could wear their pajama’s all day, and more seriously, an employee might have a hankering for a cold brew at lunch time or feel like rolling a joint at 3pm to help them relax after their day’s work – thereby becoming inebriated.
Under normal circumstances, an employer would be fully within their rights to immediately institute disciplinary action against their employee. However considering the employee is at home and therefore not bound by the LRA or the policies of the company they work for, the only recourse the employer may have to warrant disciplinary action resulting in misconduct charges, would be in the instance where such an action results in incapacity or the commission of a crime.
But, this is where common sense and reasonability undeniably come into play.
With the above in mind, it is plain to see why some companies may panic and wonder how they will maintain a semblance of normality and ensure that their work is carried out as per normal. Most companies would want to dive straight into micro-management mode. Which is understandable.
But before doing that, let’s discuss some ways that can ease this work from home situation for both employer and employee.
The OHSA requires an employer to provide and maintain a workplace that is safe and risk free when it comes to the health and safety of its employees. This must be done as far as reasonably possible, and includes ensuring that the workplace is free from harmful substances and other hazards. Should that not be possible, the employer is obligated to warn its employees of these potential harms and hazards whilst still providing protective measures and information on how to prevent and minimise the potential harm.
But ensuring this for each and every employee during this Covid pandemic (in their own homes) is almost impossible and impractical.
So, what to do?
Just because remote workers are not physically present at the office, does not mean that an employer is completely off the hook from ensuring that they comply with health and safety regulations. It’s up to the employer to identify the potential hazards associated with Covid and that may come with remote work. Employers can accomplish this by reviewing hazards and educating their employees on some do’s and don’ts to ensure that risks and control measures are adequate. This can be done via Zoom, Skype or Microsoft teams, instructional video or informative email. They can also establish a system for reporting and investigating injuries, illness, or other incidents that can occur because of work activities.
But, it stands to reason that when it comes down to it, remote employees will be ultimately responsible for taking care of their own health and safety by complying with the policies, guidelines and suggestions set forth by their employer. Additionally, they should report any hazards or issues as soon as possible following the employer’s reporting procedures. If needed, Personal Protective Equipment (PPE) should be supplied to employees.
Privacy and Security
With remote working, all communication will take place in a decentralised environment. Therefore the privacy and security of your business’ information (and that of your clients) should be at the top of your list of concerns.
All of the sensitive information your employees will have access to will be submitted over wireless networks: passwords, email addresses, personal identifying information, phone numbers, addresses, proprietary information, financial data, communication about customers and employees. This is just a short list of the kinds of information that is sent by and to your employees.
Make sure that everyone in your business understands your privacy and security policies (which you should have – remember the Protection of Personal Information Act 4 of 2013 (POPIA) came into effect on is 1 July 2020, allowing businesses a year to ensure that they fully comply with the provisions of POPIA). Again this information can be disseminated via Zoom, Skype or Microsoft team’s calls, instructional videos or informative emails. Ensure this is done to prevent any employee risking non-compliance (the ramifications of non-compliance including maximum penalties of a R10 million fine or imprisonment for a period not exceeding 10 years or to both a fine and such imprisonment are not worth the risk).
The onslaught of COVID-19 data breaches has left a trail of victims, both businesses and individuals, alike. Ensure that your business does not suffer the same fate.
Work-From-Home Infrastructure and Expense Reimbursement
Employers should attempt to provide the resources employees need to work from home effectively using company-provided equipment, like computers, mobile phones and wireless 3G connection. Where that is not possible, employers should evaluate the personal tools and equipment the employee is required to use on the employer’s behalf and determine whether and to what extent reimbursement for associated expenses may be necessary.
Whether working from the office or working from home (and perhaps on their own devices) employees must be reminded that their actions on social media platforms can still bring the employer into disrepute. And importantly that there may be severe consequences for them if they do so. People have flocked to social media for answers, updates and general social interaction, seeking guidance and offering opinions without thinking. Social media is not the place to raise opinions on the President, Government or the Covid-19 situation. Especially when done during company time and if mentioning a company name.
A social media policy should be put into place and again communicated to employees via Zoom, Skype or Microsoft team’s calls, instructional videos or informative emails to ensure compliance whilst working remotely. Reputational harm is definitely something to guard against, especially since normally prohibited internet sites on work computers (such as Facebook) will no longer be possible.
Even though employees will not necessarily be obliged to comply with the company’s dress code, employees must be reminded to still remain professional in all dealings with clients and colleagues. Even when working remotely. No pajamas in video calls with clients. By all means necessary, employees must try to minimise noise and outside interference when taking a work call telephonically or on video so that they cannot be interrupted, or have confidential information overheard by outsiders.
Are you still allowed to apply for sick leave if you work from home? In short, yes.
If an employee is unable to work because they are sick, they are entitled to be paid sick leave (if they work 5 days per week: this is 30 days in a 3-year cycle). As per normal. However, employers can require proof of illness such as a medical certificate for the period the employee is booked off from work for sickness. This includes Covid-19, where employees will be entitled to sick leave on full pay in the ordinary course of events. Medical practitioners are required to certify employees as being unable to perform any duties (even from home). Medical practitioners are required to divulge this level of detail in their medical certificates and where such information is absent, the employer can make enquiries with the doctor for clarity.
Where being absent from work is due to medically advised self-isolation or quarantine, the situation is a little more uncertain. Any exclusion period should be reasonable and no longer than is necessary to establish that the person is not infected. In order to avoid employees being reluctant to self-isolate, it is recommended that employers treat this absence as sick leave or agree for the time to be taken as annual leave. Should the employee be able to work from home (and if they are not sick), the self-isolation should not be docked as sick leave or annual leave.
Let’s not forget the softer issues to working from home
Childcare responsibilities, death of family members and hospital visitation
With schools closed to most pupils during the lockdown, many employees have been balancing working from home with caring for children. As schools return, some employees may want to alter their working patterns to fit better with family life.
Although there is no automatic right to flexible working, employers should be sensitive towards childcare issues and, where possible, accommodate reasonable requests. A failure to permit part time working can potentially give rise to claims for indirect sex discrimination where the reason for the request is due to childcare responsibilities.
The same goes for the death of a loved one where the employee is unable to attend a funeral due to lockdown measures or where family members are in hospital and cannot be visited – employers should practice flexibility and understanding and where necessary, the employee should be entitled to family responsibility leave. Even if they are not able to be physically present at either the funeral or bedside of a loved one.
While the above is by no means an exhaustive list, it does cover some of the most important points that all employers must consider whilst enabling employees to continue to effectively work from home. In the best way everyone can.
Source: www.golegal.co.za | Provided By BENATERS | By SHAUN BENATER