Local occupational safety and health (OSH) experts are urging Jamaican entities to develop work-from-home protocols for their employees as this will become a long-term arrangement and a new normal for many after the COVID-19 pandemic.

This comes against the background of the Government having instituted a ‘work-from-home order,’ which expired on May 31, as part of measures to reduce the community spread of COVID-19 in Jamaica.

With mutual benefits, such as increased productivity, being derived from the new work arrangement, many employers have opted to allow their employees to continue to work from home despite the order no longer in place.

According to attorney-at-law and OSH specialist Khadrea Folkes, while work-from-home arrangements are a response to the pandemic, equally novel challenges will emerge in respect of the application of some well-established legal principles.

One such challenge which she anticipates is in regard to reconciling the requirements at common law, on the part of employers, to provide a safe system of work and an adequate plant and equipment, as part of their general duty to take reasonable care for the safety of employees, with work-from-home arrangements.

“Let us say an employee, who was provided with an ergonomic workstation at his or her place of work, proceeds to carry out work from a dining table at home, and develops a musculoskeletal problem as a result.

“The question of the extent of the employer’s liability to the employee, if at all arises, considering that the home is a private domain to which the employer has no right of access, let alone control,” argued Folkes.

“If one were to consider that the employer’s duty to an employee is premised on the law of torts, then it can be readily appreciated that the principle of ‘foreseeability of harm’ to the employee, which is not ‘remote’ in nature, would be relevant in the assessment of liability in such an eventuality.

“Therefore, at the very least, an employer must necessarily have a discussion with the employee to ascertain their safety and health needs, which would ultimately inform the content of work-from-home arrangements, to include the provision of equipment, as well as, relevant education and training about safety and health, as would facilitate the employee in not only being productive, but equally important to work smart and work safe,” added Folkes.

She added that a relevant consideration is the enduring duty of employees to mitigate any harm to themselves, which would at the very least require that they communicate their safety and health concerns/challenges to the employer, who is not in a position to directly observe, but would be put on notice and allow a prudent employer to fulfil their legal obligation in the circumstances.

Janice Green, national secretary of the International Commission on Occupational Health (ICOH), for Jamaica; and the occupational health and safety officer at The Jamaica National Group, agrees that the question of how employers can continue to ensure the safety of employees engaged in work-from-home arrangements is a challenge.

“While employers have responsibility for the safety and health of workers at the workplace and during work hours, with remote work, it will be challenging for them to monitor and control matters, such as proper ergonomics which could increase the risk of injury or health problems to workers,” Green pointed out.

According to Green, in the absence of an Occupational Safety and Health Act for Jamaica, employers could reference the website of the International Labour Organization, which has developed a document, to provide practical guidance for its member companies, which have implemented work-from-home protocols.

Janice Green’s work-from-home tips for employers

• Establish health and safety policies which documents employers’ duties and employees’ responsibilities.

• Review the health and safety policies to ensure that they cover working from home arrangements.

• Promote awareness and ensure compliance, by including procedures for reporting work-related incidents, accidents and health concerns.

• Provide documented information and hands-on training about health and safety issues, such as: ergonomics, working in isolation, general fire, and electrical safety issues.

• Ensure that workers are aware of, or provided with relevant written information about their general obligations in regard to safety and health. The employees are to sign to confirm having received any such written information.

• Ensure that employees are aware of the company’s liability for injuries, which may occur in the worker’s home during the work from home hours.

• Ensure that there is a point person in the organisation, with training in occupational health and safety, to provide guidance about the evaluation of offsite workers’ workstation, and the monitoring of ergonomic conditions.

• Offer targeted ergonomics and safety training, or resources to improve the physical home-based work environment.

• Ensure that the Employee Assistance Programme is readily accessible to offer coping skills to employees who will be experiencing full-time working from home for the first time, while they are also isolated from co-workers, friends and sometimes even from family.