6 April 2021
The Work Where You Want Act, which would establish a right to work from home, will not be introduced for the time being.
Nonetheless, working from home is here to stay, even after the corona crisis. What does this entail for occupational health and safety obligations and liability risks for the employer?
The employer’s duty of care for the home workplace is more limited than the Occupational Health and Safety (OHS) obligations that apply within an office or factory space. The employer must ensure that the employee has an ergonomically designed workplace. That means providing a good and large enough desk, an adjustable desk chair, a well-adjusted screen and accompanying aids. “Taking care of” does not mean that the employer must purchase everything (new) for the employee, if the employee already has an ergonomically well-designed workplace. The point is that the employer must determine whether the employee has a good workplace at home.
This duty of care means that the employer may ask the employee to give an impression of his or her home workplace by sharing photos or videos. An alternative is for an employee of the Occupational Health and Safety Service to inspect the employee’s home on behalf of the employer and check whether the workplace is ergonomically sound and therefore “arbo-proof”. If the inspection shows that the workplace is not ergonomically designed, while the employee is expected to work from home, then the employer is obliged to provide the employee with the correct equipment (chair, desk). However, if an employee only occasionally works from home, the obligation to provide an ergonomically designed home workplace does not apply.
The main rule of the Working Conditions Act is that the costs of furnishing the workplace are for the account of the employer. The employer does not charge the employee any costs for the workplace at the office. However, agreements on reimbursement of costs for furnishing the workplace can be made in a work from home policy or from home working agreement.
Just as with working at the office or in the factory, the employer has another duty of care for employees working from home: to implement a policy that prevents the workload from becoming too high and the employee from getting a burnout (limiting the so-called psychosocial workload). After all, stress and burnout can lead to illness with all the associated costs – continued payment of wages during illness and possibly even employer’s liability for further damage. As an employer, for example, arrange for regular (team) consultation about work pressure, and provide information about safeguarding the balance between work and private life – especially when working from home. These are open doors, but in order to avoid any liability for burnout of homeworkers, it is important that the employer can demonstrate that they have provided information and education to prevent excessive work pressure.
Now that working from home will be the norm for some time and will remain more common after the corona crisis, it is sensible to formalise a home working policy. This can be done by laying down conditions for working from home in a home working policy: with regard to risks and liability, mutual OHS obligations, privacy aspects, and cost reimbursements. The Works Council will usually have to be involved in this, and it is important to include working from home in the mandatory risk inventory and evaluation (RI&E).
In order to prevent liability for working from home as much as possible, we advise you to start working with a home working policy now.
If you have a question, please do not hesitate to contact me.
