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If an employee is capable of performing their duties (or reasonable alternative duties) from home, an employer can direct them to work from home due to requirements related to COVID-19. If a casual employee can’t work from home, you may need to consider cancelling their shift (more on casual employees on our page on changing workers' tasks or shifts).
What are reasonable alternative duties depends on the employee’s role, their capabilities and their seniority (among other factors). You will also need to check for any relevant terms in the employee’s employment contract or enterprise agreement about giving an employee alternative duties.
Even as social restrictions ease, some governments may encourage those that can work from home to continue working from home. As your organisation plans its return to work (see ‘How do we plan our return to work?’), consider which employees are capable of performing their duties, or reasonable alternative duties, from home.
How do I make sure we’re meeting our work, health and safety requirements when my employees are working from home?
An employer’s WHS duty to ensure, as far as is reasonably practicable, the health and safety of workers, continues to apply when employees are working from home.
Minimising health and safety risks while working from home
You can minimise the risk of breaching this duty by:
- giving employees guidelines or a checklist on how to set up a safe home work environment (covering, for example, ergonomic work station set up and location, and using power cords safely)
- having daily communication with employees and checking in with them regularly
- if applicable, reminding employees they have access to an employee assistance program
- suggesting ways for employees to stay connected with their team members and other employees (for example, virtual team morning teas or daily quick check-ins)
- reminding employees how they can access IT support when needed
- appointing a contact person in the organisation who employees can talk to about concerns
- providing wellbeing tips, to help employees keep their minds and bodies healthy
- providing information on how to work effectively and productively from home
Normally, before an employee begins to work from home, the employer would likely conduct a physical inspection of the home office set up to make sure it’s safe. In the current environment, this isn’t possible. So, providing the employee with a checklist and guidelines on how to do this is very important, particularly for employees who are not used to working from home.
Family and domestic violence - a recent case example
The NSW Court of Appeal has recently ruled that employers can be held responsible for domestic violence inflicted against their staff who are working from home.
This decision involved a workers compensation claim made by the children of a woman who was killed by her partner. At the time of her death, both partners were employed by a family business being run from their family home. The Court rejected the appellant’s argument that the domestic violence suffered was outside of the scope of her employment. It held that there was a direct connection between her employment and the domestic violence that was perpetrated against her because of the work from home arrangements in place.
This case highlights that organisations must consider broader principles of safety when promoting safe work-from-home practices. In particular, organisations need to consider how staff can communicate if they or their loved ones are at risk of family or domestic violence. The organisational approach should be explained in an easy-to-understand policy available to all staff.
You can read the Court's full judgement in this case (Workers Compensation Nominal Insurer v Hill  NSWCA 54 (31 March 2020)).
Some of our employees need to care for children at home. Are we obliged to make reasonable adjustments to their work?
If employees can still perform their required duties, with their children at home, employers should support the employee and they should continue to receive their normal salary.
If employees aren’t able to perform their regular duties from home because of child care responsibilities, the employer is not obliged to make any adjustments to their work or hours of work. It’s the employee’s responsibility to put appropriate child care arrangements in place.
But employers may choose to reach an agreement with the employee to work fewer hours or work their hours at different times of the day or week. However, any agreement will need to be in accordance with the terms of an applicable Modern Award or enterprise agreement. For example, if you allow evening work, you need to make sure this doesn’t result in an underpayment issue (as the employee might be entitled to receive penalty rates for working those hours). A variation to the employment contract may be required to facilitate the change in hours.
However, if the employee has to take on unexpected child care responsibilities, for example, their child’s school or child care centre closes with little or no notice, the employee would likely be able to access paid carer’s leave for a short period on the basis that this amounted to an ‘unexpected emergency’. But, where the employee received at least two weeks’ notice of the pending closure, or where the closure is for a lengthy or indefinite period, it will not be, or continue to be, an ‘unexpected emergency’. After this, it would be at the employer’s discretion whether the employee continues to receive paid carer’s leave.
As childcare facilities and schools re-open, you should review any arrangements that were put in place to support staff’s childcare commitments. If interim arrangements are no longer required or are no longer suitable, they should be revised.
I don't think my employees are actually doing any work from home. How do I deal with performance management in this context?
Performance management is important even when employees are working from home, and you should follow any performance management policies that are already in place.
An employee’s performance when working from home can be managed effectively by setting up clear expectations and lines of communication. This may include daily catch-ups with employees to check in to see if they are actually doing work from home and setting clear priorities and timelines to complete work.
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, don’t only apply 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. Any modifications to duties should be discussed and clearly communicated – for example: ‘as you can no longer do X, I want you to focus on Y, and here is what that involves’.
Further, a task that might have taken two hours to complete in the workplace might take four hours at home. This should be taken into account in assessing an employee’s performance.
It’s also important to make sure that the employee has the necessary tools to perform their work from home, such as IT capabilities.
It may also be necessary to discuss changing an employee’s hours if they have child-caring obligations during the day which prevent them from working during standard business hours (see above).
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
- childcare responsibilities
- living with a person who is particularly vulnerable to COVID-19
- mental health concerns
- health advice