WFH during COVID-19 crisis leaves employers vulnerable to WHS liability

In brief 2 min read

With an unprecedented number of employees now working from home due to the COVID-19 pandemic, employers must be increasingly alert to the work health and safety (WHS) implications arising out of these arrangements.

How does it affect you

• Where an employee is working from home, the employee's home is the 'workplace' for the purpose of WHS laws. Employers have a duty under WHS laws to ensure, so far as is reasonably practicable, that employees working from home are not exposed to risks to their health or safety.
• Employers should provide guidance and training to employees to help them set up a safe home office and minimise safety risks in their work environment.
• In addition to minimising the risk of physical injury, employers should be mindful of the risks to their employees' mental health and wellbeing while working from home. Providing employees with access to an Employee Assistance Program and maintaining regular contact and well-being check-ins by managers or HR will assist to mitigate this risk.

WHS and workers' compensation risks

Under the model WHS regime, a person conducting a business or undertaking (PCBU) has a primary duty to ensure, as far as reasonably practicable, that the workplace is without risks to the health or safety of any person in the workplace. A workplace is any place where work is being done in connection with the PCBU's business.

This means that if an employee suffers an injury while working from home, an employer can be found to be in breach of its obligations under the WHS legislation. An employer may also be subject to a workers' compensation claim if an employee sustains an injury.

In addition, as social isolation can have a significant impact on mental health, employers should also take steps to minimise risks to their employees' mental health and wellbeing.

Practical tips

SafeWork Australia has advised employers to take an active role in minimising health and safety risks by:

• providing guidance to workers on what is a safe home office environment, including what a good workstation set-up looks like;
• requiring workers to familiarise themselves and comply with good ergonomic practices, eg by referring to a self-assessment checklist;
• maintaining daily communication with workers;
• providing continued access to an Employee Assistance Program; and
• appointing a contact person that the worker can talk to about any concerns.

Employers should also ensure employees have access to appropriate equipment while working from home. For instance, if an employee does not have an ergonomic chair or workstation, this equipment should be made available. Employers could consider providing a one-off amount to subsidise the purchase of office equipment for those employees working from home.

These measures will assist in protecting the health and safety of employees and limiting employers' liability for any injuries suffered.