Amid the corona virus pandemic, employers have been increasingly sending their employees to work from home. Until recently, working from home was unusual, because employees commonly worked at their employer’s premises, where they had all the necessary conditions to perform their work tasks.
However, since 2020 working from home has become common, given that today over eight million people across the world work outside the premises of their employers. There are several reasons why employers take this step, but it is primarily a matter of health and safety protection of their employees, since the employers, due to the nature of the pandemic, cannot guarantee their employees a safe environment at work.
The right to permanent work from home, or once or twice a week, could be guaranteed by the law considered last fall in Germany. The intention was recently announced by Hubertus Heil, the Minister of Labor, because the estimates show that the percentage of employees in this EU member state who work from home has actually doubled during the crisis caused by the corona virus pandemic.
In Serbia, as the representatives of trade unions point out, more than one hundred thousand people were given the opportunity to work from home, which was made possible by the Decree on organizing the work of employers during a state of emergency (“Official Gazette of RS”, No. 31/2020). However, given that this is all relatively new, working from home brings great challenges as well, both for employers and employees. The main issue with this type of work is how will the employer monitor the employees and determine whether they really perform their work duties. This is accompanied by the issue of mixing the working and free hours of the employee, the compensation of expenses that the employees have and finally the treatment of an injury at work, when the work was performed from home.
Clearly, the employers have substantially less control over their employees when those employees work from home, hence, it is necessary to have the clear legal regulations regarding remote work and work from home, in order to prevent abuse by employers and employees alike.
Legal Regulation
Labor Act (“Official Gazette of RS”, No. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – decision US, 113/2017 and 95/2018 – authentic interpretation) (the “Act“) determines the possibility of working from home in Article 42, through the conclusion of employment agreements for work outside the employer’s premises (remote work and work from home), but also Article 50, which prescribes that employees usually perform work at the employer’s premises, and that they can agree for one period of working time within the agreed working hours to be performed by the employee from home.
In addition to mandatory provisions prescribed by the Act, the employment contract for performing work outside the employer’s premises also contains: (i) duration of working hours according to work norms; (ii) manner of supervision over work and quality of employee performance; (iii) work tools necessary for work performance that the employer is obliged to provide, install and maintain; (iv) use of work tools necessary for work performance provided by the employee and compensation of costs for that use; (v) compensation of other labor costs and the manner of their determination.
It seems that the legislator, by setting forth additional elements to the employment contract, primarily had in mind the protection of the employee, but it also enabled the employer to establish control and supervision over the employee’s work, considering difficulties for the employer to supervise the employee in these conditions.
However, one of the key, and we could also say controversial, questions related to work from home is whether it is possible for an employee to suffer an injury at work, given that he is at home all the time. Moreover, another question that arises is how an employee could prove that the injury occurred “at work” or how the employer could prove that the employee is solely responsible for the injury/damages.
The main issue concerning work from home and potential injury at work in that respect is in the fact that the employer cannot guarantee safe working conditions when the employee is working from home (the employer does not have access to the employee’s home/apartment in order to provide the necessary working conditions). Unarguably, the employer must guarantee for the good condition and safety of the work tools (equipment and machinery) the employee uses while working from home. For example, the employer provides the employee with a laptop, a mobile phone, and similar and other devices. In that case, the employer guarantees that these devices and equipment function properly, and he is responsible for the damages the employee suffers due to their malfunction.
However, it is possible for an employee to suffer an injury in his/her house/apartment that does not originate from the work tools provided by the employer, but the injury is still related to work or those tools. For example, the socket into which the employee plugged the computer cable is faulty and the employee is physically injured. The question that raises is whether this injury can be treated as an injury at work.
In January 2021, the Ministry of Labor, Employment, Veteran and Social Policy (the „Ministry“), the Directorate for Safety and Health at Work, adopted the Guide for Safe and Healthy Work from Home (the “Guide“). This Guide is primarily intended for employees who work from home by means of information and communication technologies (desktop computer, laptop, smartphone, and tablet).
The Guide, that primarily refers to the Safety and Health at Work Act (“Official Gazette of RS”, No. 101/05, 91/15 and 113/17 – other law), prescribes the implementation and improvement of safety and health at work of persons who participate in the work process, as well as persons found in the work environment, in order to prevent injuries at work, occupational diseases and work-related diseases.
However, the Guide also recommends that the employer prescribes the rights and obligations of employees working from home by its by-laws (Collective Agreement or Labor Rulebook) or employment contract, given that the Safety and Health at Work Act prescribes the minimum standards of safety and health at work.
The Guide also states that there is no obstacle for the application of the Safety and Health at Work Act and relevant by-laws even when the employee performs work from home.
To prevent injuries at work of an employee who is working from home, the employer, before sending the employee to work from home, should first determine whether such work can be performed well and safely, i.e., whether employees have all the necessary conditions for safe and healthy work from home. Regardless of whether the employees work outside the employer’s premises, the employer is obliged to take care of its employees, as much as possible, and to provide the conditions free of any risks for the physical and mental health of the employee.
As one of the possible preventions of injuries at work, the employer should regularly provide information, instructions, and training to employees related to safety and health at work. On the other hand, employees should implement measures and protect themselves from injuries, as well as report any injuries to the employer that occurred while working from home.
The Ministry’s Guide gives guidelines and recommendations to employees working from home, some of which are as follows: in order to prevent tripping and falling, the work area should be clean, free of obstacles and waste; electrical installations must be placed in such a way that they do not pose a danger that could be the cause of a fire or explosion, so that the employee is protected from the dangerous effects of electricity (direct or indirect contact of live installations and equipment); checking the condition of sockets and using appropriate sockets and extension cables, etc.
This list in the Guide indicates possible injuries at work and the way to prevent them. Of course, the employee is obliged to share information and coordinate all precautionary activities with the employer, highlighting the potential danger spots and malfunctions of devices or equipment in order to prevent the occurrence of an injury.
Good news is that, since the declaration of the pandemic, no injuries at work have been reported by the employees who perform work at home. The reason for this could be the fact that employees who work from home are not assigned to high-risk jobs (e.g., construction workers, miners, mechanics, factory workers, etc.), but the reason also might be that employees may have suffered some injuries while working from home, but failed to report them.
One of the issues that employers also raised was the fact their employees, indeed, sometimes do not do work from home, but from somewhere else (e.g., café, restaurant, friend’s house, etc.). Nevertheless, in case of an injury, the employer bears the burden of proof that such an injury/damages would not have occurred if the employee had worked from home.
Conclusion
Although working from home is a relatively new concept, it is noticeable that both employers and employees quickly adapt to it. Work-from-home related injuries have not been reported yet, but if they do occur, the employer shall be equally liable as if they occurred at its premises.
To prevent employees from getting injured, the employers should guide and direct employees on how to take care of themselves and how to provide a healthy and safe environment at home. The best way to do this is to adopt the company’s by-laws in that respect, and also to introduce the employees with the Ministry’s Guide providing guidelines and recommendations to employees when working from home. On the other hand, the employees must take all necessary steps in protecting themselves while working from home, since they are masters of their homes, in which employers cannot provide and guarantee the safe working conditions.
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