Working from Home

In 2020, as the Covid-19 pandemic swept across the globe, governments provided guidelines to employers to assist them with how to isolate and quarantine infected and affected workers to slow the spread of the disease. As lockdowns shut down many countries, threatening to cripple economies, one act alone would prove vital in averting this possibility: employees were asked to work remotely from their homes. As the world returns to various levels of “normality”, this has become an on-going practice and in hindsight, resulted has many positive aspects for the employer, the employee, their families, as well as the environment!

One possible negative aspect, the consequences of which remain to fully be seen, relates to health and safety in the workplace. Whereas the employee was previously bound by workplace policies and the employer had the ability to implement rules and preventative measures designed to mitigate possible risks to employees; the home office was largely unchartered and uncontrolled territory.

In Germany, a home-based telemarketer, fell and broke his back while “en-route” to his office (workplace). The resulting court case found in favour of the employee and the employer was found liable for workplace compensation. In terms of South African workplace regulations, are employers going to be held similarly liable?

South African workplaces are protected by the Occupational Health and Safety Act, No. 85 of 1993 (“OHSA”) and the Mine Health and Safety Act, No. 29 of 1996 (“MHSA”), and any workplace costs relating to fatal or non-fatal injuries, or diseases, are offset by the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 (“COIDA”). Covid-19 now also falls under this umbrella since the government issues its Covid-19 Regulations.

Employers are required to, where “reasonably practicable”, ensure that they ensure the safety of all employees, (and visitors to their workplace), by conducting workplace risk assessments to identify potential risks; implement measures to mitigate these risks; provide workplace awareness regarding these risks and finally supervise their employees to ensure that they are following all health and safety rules and procedures.

In an instance, where an employer has employees (defined in Section 213 of the Labour Relations Act (LRA) as “anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer”) who work from home, the same rules and regulations will apply. Employers are therefore required to perform the same workplace assessments and implement the same measures that they would be required to do, if the employee were based in the office, significantly extending the scope of responsibility for the employer while reducing the ability to implement controls.

In addition, requirements of workplace Environment regulations (thermal requirements, natural and electrical lighting, ventilation, noise and hearing conservation, precautions in event of natural disasters, including exit strategies), and Facilities Regulations (including provision requiring work conditions to be clean, hygienic and ergonomically acceptable) will apply. Furthermore, any employment equipment, including computers, printers, photocopiers and laptops, constitute “machinery” thereby extending The General Machinery Regulations to the remote workplace environment. And to make things even a little more interesting, designated are required to do all of this in a fair and equitable manner, without discrimination, in line with the Employment Equity Act.

Employers must navigate the various legislative requirements in order to ensure that they are not held similarly liable to their German counter-parts.