Explained: Working from home is now a must in Greater Sydney

Employers in Greater Sydney must now require employees to work from home.

In yesterday’s press conference, NSW Premier Gladys Berejiklian said:

“Please know that from (today) there are harsh penalties in place for employers forcing their employees into work sites unless they are absolutely necessary…

That is really an important tool for us to make sure that employees are not forced out of their homes if they can safely do their work from home.”

The Public Health Order (PHO) for Greater Sydney says:

(1) The Minister directs that an employer must require an employee to work at the employee’s place of residence.

(2) Subclause (1) does not apply if it is not reasonably practicable for the employee to work at the employee’s place of residence.

Employers that breach the PHO may be subject to penalties of $10,000.

Employees who live in Fairfield, Liverpool and Canterbury-Bankstown Local Government Areas (LGAs) are further restricted from leaving those LGAs unless they are an “authorised worker” under the PHO and even then subject only to stringent testing requirements.

When is working from home reasonably practicable?

The answer is, it depends. It depends on the employer, the nature of the workplace and specific circumstances of the individual employee.

Service NSW provides the following guidance for employers in deciding whether working from home is appropriate for their employees. The employer should consider:

• The individual employee’s role;
• Whether the employee is in a vulnerable person category for contracting the virus;
• The suitability of work activities;
• Workflows and expectations;
• Workstation set up; 
• The surrounding environment such as ventilation, lighting and noise;
• The home environment, such as partners, children, vulnerable persons and pets;
• The communication requirements such as frequency and type;
• The mental health and emotional wellbeing of the employee; and
• Safe working procedures and training requirements.

During a public health crisis, particularly a highly contagious outbreak such as the Delta variant of COVID-19 that is circulating in the community, what would be “reasonably practicable” would lean in favour of the employer taking reasonable steps to enable the employee to work safely from home. What would be reasonable steps for a small employer may however differ from what would be reasonable and expected of a larger employer.

Overriding duty to ensure workers are safe

The duty of a Person Conducting Business or Undertaking (PCBU) to ensure the health and safety of workers and others in the workplace is paramount under work health and safety laws. Working from home in many circumstances, particularly for white collar employees, is a reasonable control measure that can be taken to ensure the health and safety of their workers and others in the workplace to minimise exposure to the COVID-19 virus.

Employers should consult with workers and undertake risk assessments to ensure work from home is safe including the completion of checklists and taking photos of workstations given physical inspection of premises is clearly not permitted under the PHO, and in most cases wouldn’t be reasonable or practicable in any event.

Depending on the circumstances, size and means of the PCBU, it may also be reasonable to provide or reimburse workers for the reasonable costs equipment needed to work from home.

Workers have a right to refuse to attend work premises if they have a reasonable concern it would be unsafe to do so and protection form adverse action is available to workers who assert those rights. PCBUs should seek immediate advice should such disputes arise to ensure they are managed appropriately on a case-by-case basis given penalties under the PHO and potential liability that may arise under WHS laws and the Fair Work Act.

When home is not safe

For some workers, working from home may not be a safe option because they may be experiencing family and domestic violence.

Safe Work Australia recommends PCBUs: 

• Maintain regular communication with workers. Avoid directly asking about the worker experiencing family and domestic violence about the violence as this may unintentionally place the worker at risk of serious harm. It is common for perpetrators of family and domestic violence to monitor their partner’s communication including emails, text messages and phone calls;
• Agree on a course of action if you are not able to contact the worker for a defined period;
• Appoint a contact person in the business that workers can talk to about any concerns;
• Provide work phones and laptops to enhance autonomy and digital security; and
• Provide continued access to an employee assistance program or other support programs. 

If it is determined working from home isn’t a safe option for the worker, arrangements should be made as far as reasonably practicable for the worker to safely work from the office or an office space that is arranged closer to the workers’ home. This is particularly important noting the further restrictions on LGAs for workers that are not “authorised workers”.

Guidance on the grey areas

In some cases a lot of the above will be evident and self explanatory but it is from the grey areas that we are seeing the most risks arise. Employers should seek advice if unsure whether work from home would be reasonably practicable, if a regulator is involved or a dispute with workers and unions arises.

The spirit of the PHO is to save lives and livelihoods. By allowing workers to work from home to the extent that it is possible seems a small price to pay.

Further information and resources are available here.

This article was first published on LinkedIn.