By Elizabeth Ticehurst
On 14 December 2020, the NSW Government lifted the public health order requiring employers to allow their employees to work from home if it is reasonably practicable. Within a week after this development the Northern Beaches outbreak in Sydney came to light, stoking fears that a return to office-based working might be premature. However, with the prospect of a vaccine soon becoming available, many businesses are now asking whether and how they can request employees to return to the office.
Lawful and reasonable direction
It might surprise some to know that unless the employment contract states otherwise, no employee has a right to work from home. An employer can request its employees to work from the employer’s office or another workplace as long as it is safe for them to do so. An employee who refuses such a direction could, in theory, be dismissed for failing to comply with a lawful and reasonable direction.
For practical reasons however, it is unlikely that many employers will take such a confrontational approach. Many employees have now been working remotely for almost a year and have become accustomed to the change. A sudden shift back to the office may have a negative effect on employee morale and engagement. For this reason, many businesses are implementing a phased return or are temporarily adopting a hybrid mode of working where employees are permitted to work from home as long as they attend the office for a prescribed minimum number of days.
Create a COVID-safe workplace
Persons carrying on a business are required to eliminate or minimise risks to health and safety of their employees and other people in the workplace, to the extent reasonably practicable. A ‘safe’ workplace from a pandemic prevention viewpoint would be one where:
- it is possible for employees to socially distance
- suitable cleaning and hygiene measures are carried out and
- if appropriate, masks are worn indoors.
Employers will need to examine their existing workplace to determine what is safe and feasible in the current environment. For example, if the current workplace does not have the required space to enable social distancing, employers may have to take other measures to maintain safe practices, such as limiting the number of people in the workplace. The use of confined spaces such as lifts, bathrooms and kitchens may also have to be limited to ensure that people are not in prolonged close contact.
Consider vulnerable workers
Regardless of the safety measures that the employer takes, there will be some employees for whom an office-based working environment presents an unacceptable risk. These employees may have underlying health conditions that mean they are especially vulnerable or may have vulnerable people as members of their household. For these workers, a direction to return to the office may not be considered reasonable.
The employer may also be required under the Disability Discrimination Act to make ‘reasonable adjustments’ for workers with a disability. A disability would include a health condition that puts the employee at risk of serious complications should he or she contract COVID-19. If an employee’s job is one that can be performed remotely with minimum cost to the employer, a working from home arrangement would very easily be seen as a reasonable adjustment that the employer should provide. Other arrangements that might be seen as a reasonable adjustment could be:
- providing a parking space so that the employee does not have to use public transport
- permitting the use of a private office for an employee that usually has to sit in an open area
- allowing the employee to attend meetings through remote access technology.
Flexible working arrangements
A number of surveys have shown that a large proportion of workers who have worked from home during the pandemic wish to keep working remotely at least some of the time. There is no legal right for any worker to work from home, but workers in certain categories have a right to request flexible working arrangements. These arrangements may include working from home some or all of the time. Employees who can make such a request include those:
- with children school age or younger
- with caring responsibilities
- with a disability
- who are over 55
An employer can only refuse a request for a flexible working arrangement on ‘reasonable business grounds’. Employers will find it very difficult to use reasonable business grounds to refuse a working from home request in circumstances where an employee has already spent most of the year working from home.
Elizabeth Ticehurst is an employment law expert and the Principal Lawyer at Activate Workplace Law.
