Legal Implications of Working from Home | Daily News

Legal Implications of Working from Home

Coronavirus disease (COVID-19) pandemic has affected many countries in the world and as a result Sri Lankan Government declared lengthy lockdown periods from March 2020 to-date.

When organisations are closed down and entry to respective premises is restricted as a result of this lockdown, many of them have initiated ‘Working from Home’ (WFH) arrangements among the employees.

The responsibility of WFH measures should not only be vested upon employers. The employers and the managers should ensure to uphold productivity, efficiency and continuity of the workforce while they protect the health and safety of the employees WFH, but a significant portion of the accountability lies on the employees too.

Prior to initiating the WFH projects it is the duty of the employer to ensure that it is practical and achievable to do so and the employee must support the process by being lenient and sensible, taking the crisis situation into consideration.

There are certain key factors that require the attention of the employers. Initially the employer must identify the key roles, specific tasks and functions which can be done from elsewhere. This identification process requires the employer to innovate systems or think out of the box to complete the tasks that have been formerly done at the work premises.

The employer must ensure the basic facilities for WFH such as access to a laptop or computer, Wi-Fi or Internet connectivity, reliable electricity, mobile or an accessible telephone line are provided for the employees.

The employer must identify the laws operating with regards to the WFH scenario. The employees have entered into Employment contracts as per the Legislation in Sri Lanka relating to Industrial, Employment and Labour Laws.

Since WFH has not been included in many contracts as it is a novel concept, the duty lies upon the employer to ensure the obligations and potential liability of both parties have been assessed.

The employer must provide the equipment and tools needed to complete the tasks and must validate that the employees’ working condition at home meets health and safety measurements to continue WFH.

The employer must further inspect the domestic situation of the employee to understand their living arrangements, environment of the neighborhood, dependent family members, children in need of care, health conditions and relationship burdens from spouses. Assessing these could ensure the employees are fit to carry out WFH arrangements.

Even with the latest technological discoveries WFH is not suitable for all the employees as some specific functions require the workers to be conducting their chores in the work premises. Particular jobs may be able to function as WFH scenario during a short period of time but would not be practical as a long term ongoing arrangement.

Thus the responsibility falls again on the employers to discover and implement a suitable different mode of fulfilling tasks of employees who cannot fulfill WFH. Most organisations who have faced such scenarios have requested the employees to make use of their annual, medical, half pay or no-pay leave during the lockdown periods but it must adhere to current government laws and regulations as well as be in line with the company policies.

When considering the legal implications of WFH it is important for employees to understand that they have the right to make some requests prior to agreeing to WFH arrangement, such as the tools that are essential to function. With the alarming spread of the Pandemic, most organisations took measures to develop special policies for implementing WFH arrangements. This included guidelines for individuals and reporting processes and checklists for supervisors.

If and when an employee does not possess necessary tools and equipment for WFH, the employer is bound to arrange them whether it is a specific software license or a laptop. With the new policy established some organisations allow the employees to purchase the necessary equipment and reimburse at a later stage.

It is important to note that employees should not be requested to use their personal notepads, PCs or laptops when WFH. This puts sensitive company information at risk as well as it is unethical to make such requests. Employees have the right to demand a laptop if WFH is requested from them. If an employee has a work-related accident while at WFH, the ultimate liability falls upon the employer to ensure the working conditions for WFH employees are safe and hazard-free.

Likewise the employees should also take all precautions to ensure they carry out their work safely as proving the liability of mishaps and obtaining compensation from Insurance is a lengthy and extensive process.

Many studies have identified how employees WFH have faced many difficulties with their domestic environment which has even caused stress and mental trauma to some. It is the duty of the managers to check upon their subordinates and ensure their well-being while WFH. Uncertainties with the pandemic and financial strains could add to this making the employees vulnerable while WFH. Various types of jobs may require employees to be at work sites and in such instances the employer must arrange safe transportation modes to them.

When delegating WFH duties to staff, the process should be transparent and done without discrimination or prejudice.

All the employees have a right to be paid with their full salary when WFH unless the organization is bankrupt or closed or the employees have not performed any tasks at all. It is the right of the employer to know the actual work hours each employee puts in and the responsibility lies upon the employee to keep a record of the tasks, times and other information that could verify this.

Employees are allowed to use annual, vacation, sick and no pay leave as per their eligibility during the pandemic. If the employee or a close contact is infected by COVID-19, the quarantine period should not be deducted from salary or leave. Same rule applies if the employee seeks medical assistance and is hospitalized due to COVID-19.

Due to the financial fallout taking place from the COVID-19 pandemic, many organisations have no choice but to reduce the number of staff in their service. The legality of such redundancies will be determined on the basis of bankruptcy of a business, closure of an organization, complete termination of business or the nonexistence of a particular function or job duty of an employee. The employee has the right to ensure the employer has thoroughly followed the laws governing redundancies and it is the duty of the employer to guarantee that such dismissals were done as per legal framework while making all necessary notices and payments at termination furnished.

Many organisations wish to know whether it is necessary to enter into new employment contracts once the WFH commences. This solely depends upon the current contract and the terms specified in it. If the place of work has been specified, a new amendment may be required but if the time and work place is as not strictly stated, a new contract is not required.

A key point all employers must understand is that unless the employment contract has stated about WFH, no organization can demand the employees and it is solely the discretion of the employee to volunteer to do so.

Similarly as per the employment contract employers can do a salary cut due to the reduction of workload but it is ideal to negotiate the same with the employees as they may seek litigation under constructive dismissal. If the employees do agree to WFH and continue their work, a pay cut is not acceptable.

Some organisations tend to hire staff during the lockdown period and assume the salaries can be reduced as they will start with WFH arrangements. It is advisable to seek legal advice prior to preparing such contracts as equal pay is a right of all employees as per law and discrimination should be avoided at all times. A recent complaint that was raised by a manager was that a certain employee was using the company equipment and the work hours to do consultancy for another firm.

To avoid such misconduct, the employment contract can be amended to have an additional clause stating it is prohibited to do so with solid consequences as a result.

Many organisations may not be in a position to amend or add new sections to all their employment contracts but it is implied that such misconduct is not acceptable even if not stated specifically and, employees should face penalties accordingly.

Many employers have sought legal advice to find out if they can refuse WFH of employees. Any employee who works over 26 hours a week has the right for WFH and unless it is an additional cost to the organization, damaging to customer service or quality of products, the employee may engage in WFH.

Some organisations wish to terminate employment of their staff that refuses WFH but if such employees have worked for over two years at the same organization, it is not advisable as it could lead to an unfair dismissal charge. Some employers wish to terminate current employment contracts and request staff to work as consultants or contractors. This too could lead to an unfair dismissal if the employee has been a staff member for over 2 years.

As the employer responsible for the health and safety of the WFH employees, it is advisable to ensure an initial inspection has been conducted by their respective immediate managers in person or via video conferencing to safeguard any possible claims in the future. The insurance of the equipment used by employees should be covered by the employer.

It is best to have the employees’ work hours listed in a weekly time sheet or in a mode that is accessible and can be referred to if needed. It is the duty of the employee to ensure the confidential company details are treated with due diligence and care and they must adhere to company policies especially with data security throughout the WFH arrangements.

In conclusion whether or not WFH is suitable for any organization, the current pandemic has left minimal choice in the matter.

WFH can be beneficial to both organisations and the staff members with the rapid spread of COVID-19. In terms of the legal perspective, it is essential that both parties are aware of their rights, duties and responsibilities and carry out the WFH arrangements with an ethical, flexible and lawful manner.

Note: The writer is the Head – Department of Industrial Management, Director –Business Research Unit, University of Moratuwa and she is also a Member - Executive Committee of CMI. 

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