Make sure work-from-home pact legally okay – official

Make sure work-from-home pact legally okay – official

Sunday, September 20, 2020

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EMPLOYERS who have adopted work-from-home arrangements are being urged to ensure that they are legally sound, even in the absence of legislation that speaks to occupational health and safety.

Principal consultant and attorney-at-law at Employment Matters Caribbean, Carla-Anne Harris Roper said though Jamaica does not have legislative framework in the form of an Occupational Health and Safety Act, there are provisions in the form of case law that can guide what obtains in the event an employee is injured while working from home. In these instances, Harris-Roper cautioned employers to be mindful that they can be held liable for injuries employees might incur in a work-from-home arrangement.

“Dependent on what is happening, you may be found liable for incidents and accidents, that may occur in the employees home office...One of the things that I would advise any employer, to mitigate liability, is they should take certain steps when assigning employees to work from home. If you don't have a provision in your contract that says you can vary the place of employment, or have some kind of flexibility clause, if the employee does not agree, for them to force the employees to go and work from home would technically, again, be a breach of contract,” Harris Roper said.

“But we know what is happening — let's be practical. Right now, people need the job. They need what they earn more than they're going to stand on this highfalutin principle that you're in breach of my contract. Right now, half a loaf is really better than no bread. So, a lot of people agree to move and some people do that voluntarily because they themselves don't want to be out in a workplace situation that exposes them to possible risk. Whilst you have this technical breach possibly occurring, the likelihood is that, from a practical perspective, you're more likely to have the employee saying, let me get on board. Now, when they get on board, the employer should really make some inquiries to ensure that they mitigate the level of risk that may be in the house when they are working.”

Further, Harris-Roper said apart from having an ergonomically sound work station at home to prevent injuries that can lead to musculoskeletal disorders and other debilitating conditions, employers must be mindful of the mental health of employees who may endure a more stressful environment in a work-from-home arrangement.

“You were at a space where you go to the office [and], even if it's a pressure cooker at work, you know that at 5:00 pm or 5:30 pm, whatever time you leave, you put it down and you box it up, come to your yard, which is your little solace place, and you unwind. You debrief and you rejuvenate yourself to beat the next day. Now, the whole thing has become conflated [as] everything is in one spot. If you don't have that kind of strong mental fortitude to compartmentalise it, it can become very overwhelming,” Harris-Roper said.

In addition, Harris-Roper said employers must also ensure that the physical environment in a work-from-home arrangement is not dangerous to their employees.

“When you're at home, do you keep your front grille open or closed? Simple things. You may be so engrossed in the work that something happens and you don't know and you become the victim of a crime. The common law principles are...from an old enough case, which is called Wilsons and Clyde Coal v English, which sets out the general principles of employers' liability for occupational safety. We should have a safe place of work, safe system of work, adequate plant and equipment, competent co-workers, and adequate supervision. Those are the four main areas at common law that an employer is duty-bound to provide to an employee when they are working with you. The fact that they may not be in an actual office space does not reduce that or take away that particular obligation on the part of employers,” Harris- Roper explained.

Regarding the proposed Occupational Health and Safety Act that has been languishing in Parliament for years, Harris- Roper said what it offers represents a paradigm shift in how one looks at managing health and safety in the workplace.

In the interim of its passage, the Employment Matters Caribbean principal consultant and attorney said the government must look at developing a code of practice or basic guidelines to be used in labour law to guide flexible or work-from- home arrangements, especially for small businesses.

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