Work health and safety laws

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• How do you make sure your organisation is meeting its work, health and safety requirements when workers are working from home?
• If your workers (including volunteers) are working from home, do you need to conduct a safety inspection?
• How do you manage performance if you don't think your employees are doing adequate work at home?
• Can your organisation direct a worker to return to the workplace after they worked remotely during COVID-19?
• How should your organisation respond to requests from employees for flexible work arrangements to work from home?

Your organisation may be back in the workplace, but some employees and other workers may remain working at home or your organisation may have adopted a hybrid working structure.

How do you make sure your organisation is meeting its work, health and safety requirements when workers are working from home? 

The work, health and safety (WHS) duty of a person conducting a business or undertaking to ensure, as far as is reasonably practicable, the health and safety of workers while they are at work applies equally when workers are working from home.

Minimise health and safety risks while workers are working from home by: 

• introducing workplace policies around working from home or working remotely
• conducting an inspection of the worker’s home office set up (this could be done virtually using video , for example Zoom, Teams or FaceTime) to make sure it’s safe
• asking the worker to provide photographs of their home workspace set up if an inspection is not possible
• giving workers guidelines and a checklist on how to set up a safe home work environment (covering, for example, ergonomic work station set up and location such as providing adequate lighting and ventilation, and using power cords safely)
• having regular communication with workers working remotely
• requiring workers to notify of any risks or potential risks and hazards and install and maintain basic safety precautions such as smoke alarms and fire extinguishers
• if applicable, reminding employees they have access to an employee assistance program
• suggesting ways for employees and other workers to stay connected with their team members and other workers (for example, virtual team morning teas or quick check-ins)
• reminding employees how they can access IT support when needed
• appointing a contact person in the organisation who employees and other workers can talk to about concerns
• providing wellbeing tips to help workers keep their minds and bodies healthy
• providing information on how to work effectively and productively from home 

Managing mental health issues  

It’s important to support your workers that continue to work or volunteer from home. Addressing mental health issues and managing potential risks associated with a remote and isolated working environment is an important part of your WHS duties.. 

If your workers (including volunteers) are working from home, do you need to conduct a safety inspection? 

Ordinarily, it would be ideal to have an appropriate person conduct a risk assessment on-site at the worker’s proposed premises of remote working. However, this can be difficult to arrange. 

Even if a volunteer, employee or other worker requests that your organisation conduct a physical inspection of the premises where they propose to work, consider whether this request is practicable for your organisation.

As addressed above, other options may include a virtual inspection or requesting that the worker provide a photograph of their working from home set up. You could also provide a checklist or questionnaire for your worker to complete themselves. This checklist or questionnaire could address elements such as the placement and height of chairs relative to desks, the angle of monitor screens or laptops, and the surrounding environment generally.  

How do you manage performance if you don't think employees are doing adequate work at home? 

Performance management is equally important when employees are working from home, and you should follow any performance management policies that are already in place. Managing the performance of employees working from home can present particular challenges including a lack of face to face supervision or access to information.

An employee’s performance when working from home can be managed effectively by setting clear and realistic expectations of performance targets and the frequency of and lines of communication before the employee starts working from home. This may include structured daily catch-ups with employees to check in to see if they are meeting performance expectations, setting clear priorities and timelines to complete work and to allow employees an opportunity to seek guidance regarding their work.

Employers may also monitor an employee’s use of IT such as email traffic, access to internet sites. or keystroke monitoring software to track the employee’s output. However employers should be aware that NSW and the ACT have workplace surveillance laws that limit an employer’s capacity to conduct workplace surveillance unless the employee has been given written notice of the surveillance.

You could also implement a timesheet system – each day employees list the tasks they worked on and how long they spent on each task. However, timesheets may send a message about a lack of trust, so think carefully about using this strategy. If you do start a timesheet system, unless it’s absolutely necessary, apply it to all employees rather than only applying it to some employees. 

Employers should also be mindful that not all tasks that an employee performed in the office may be easily transferrable to the home. This may be a reason why it is not possible for an employee to work from home. However, to the extent any modifications to duties are agreed, these should be clearly communicated and documented as a variation to the position description. An employer is, however, not generally required to adapt an employee’s role in order to allow an employee to work from home.

It’s also important to make sure that the employee has the necessary tools to perform their work from home, such as IT capabilities. However, if an employee’s performance is being affected by poor network coverage at their home impacting their connectivity and speed, it may not be possible for them to continue to work from home. Employees should understand that a condition of working from home is having the IT capability necessary to perform all of the requirements of their role at the same standard as applies in the office.

Can your organisation direct a worker to return to the workplace after they worked remotely during COVID-19? 

Managing employee concerns about returning to the workplace appropriately at the outset is the best way to avoid employees refusing to come into the workplace.  

Reasons why employees may be reluctant to come into work: 

• concerns about getting to work 
• concerns about the hygiene and safety of the physical work environment 
• living with a person who is particularly vulnerable to COVID-19
• mental health concerns 
• health advice  

Consulting with your employees about their concerns is part of your work, health and safety duties. You may also need to manage employees’ reasonable concerns in your plan to return to the workplace.

A direction to return to work in the workplace must be lawful and reasonable. This means that the direction must comply with the employee’s contract of employment. Employers should consider whether the employee’s contract specifies the ordinary place of work as the employer’s office, in which case the employer may use the agreed location as authorising the direction.

However, the direction must also be reasonable having regard to relevant workplace policies, requirements under industrial instruments, WHS consultation obligations and the individual’s circumstances.

Organisations that require staff to attend the workplace (either full time or under a hybrid arrangement) must consider the basis on which its employee refuses to return to the workplace especially where they have any reasonable concerns regarding their health and safety or other legitimate reasons. Employers should also be aware that , in certain circumstances, employees are entitled to request flexible work arrangements, which may include working from home, and employers must follow procedures under law in responding to such requests. See further discussion about an employee’s statutory entitlements to request flexible work arrangements below.

Where an employee has no reasonable basis to refuse to attend the workplace, any absence from work would need to be by agreement with the employer. For example, the employer may allow the employee to use their annual leave or grant the employee a period of unpaid leave.

If the employee simply refuses to attend work without a reasonable basis, and without the employer’s agreement, the employer may need to advise the employee that a failure to attend work is a breach of their contract of employment, which may lead to disciplinary action, including termination of employment.

How should your organisation respond to requests from employees for flexible work arrangements to work from home?

Some employees are entitled under law to request flexible work arrangements, which may include a change in the location of the employee’s work to allow the employee to work from home.

Employees are eligible under law to request a flexible work arrangement if the requested change is because the employee:

• is pregnant
• is a parent of (or has responsibility for) a child of school age or younger
• is a carer
• has a disability
• is aged 55 or older
• is experiencing (or provides care or support to a member of their immediate family or a member of their household who themselves is experiencing) family and domestic violence.

If an eligible employee makes a request, the employer must respond within 21 days and various requirements apply depending the employer’s response:

• if the employer grants the request, the employer must state that the response is granted
• if, following discussion with the employee, the employer grants an alternative arrangement, the employer must outline the alternative arrangement agreed with the employee
• if the employer refuses the request, the employer must detail the reasons for the refusal and set out alternative arrangements that could be facilitated or confirm there are no alternative arrangements

An employer may only refuse a request if they have:

• discussed the request with the employee
• genuinely tried, but been unable, to reach agreement with the employee
• considered the consequences of the refusal for the employee, and
• refused the request on ‘reasonable business grounds’

Any employer may refuse a request under any ‘reasonable business ground’ that they see fit. Under law, reasonable business grounds include that the requested working arrangement would be too costly to implement, impractical or would result in a loss in efficiency or a negative impact on customer service.

Separately, employees may be entitled to request a flexible work arrangement (including to work from home) under other mechanisms including an applicable award, enterprise agreement, a contractual term, state or territory disability discrimination laws, or an applicable workplace working from home policy.

The content on this webpage was last updated in December 2023 and is not legal advice. See full disclaimer and copyright notice.

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