Protecting employees working from home

THE Covid-19 pandemic has forced millions of workers out of their normal workplaces for almost two years now, and employers have been implementing working from home (WFH) or remote working arrangements to continue serving their customers and maintaining productivity.

WFH arrangements offer many benefits and flexibility, but who is responsible and to what extent is the liability of those concerned when an employee is involved in an accident while working remotely?

Under the Malaysian Occupational Safety and Health Act 1994 (OSHA 1994), employers have the duty to ensure, so far as is practicable, the safety, health and welfare at work of all their employees.

Under OSHA 1994, “place of work” is defined as the “premises where persons work”, and “premises” include any land, building or part of any building and any tent or movable structure. However, it is unclear if OSHA 1994 would cover the WFH arrangements.

The Human Resources Minister announced last month that the ministry has included flexible work/working from home arrangements to the amendments of the Employment Act 1955, which is expected to be tabled for second reading in the Dewan Rakyat between Dec 14 and 16. It was mentioned that the employers’ responsibilities were limited to work-related activities within their control, and subject to the nature of work.

This means that an employer will only be liable for work from home injuries sustained by their employees if they were doing something related to their jobs at the time of the injury.

In a statement in March this year, the Social Security Organisation’s (Socso) chief executive officer also assured contributors that his agency had extended accident coverage to encompass WFH situations in response to the extraordinary circumstances caused by the Covid-19 pandemic.

To put it simply, an injury that occurs while an employee is working from home would be justifiable and valid as an injury that takes place during normal working hours and at the normal place of business. However, there would be some grey areas, like when exactly work begins and ends each day, and what would constitute job-related injuries.

For employees who put in longer hours, it remains unclear as to how the law would protect injuries sustained by them during the extra time at work.

When employees are working from home, they are at risk of getting hurt in unexpected circumstances, such as stepping on broken glass or random household items left on the floor or by an electrical short circuit.

Many employees do not have a dedicated workstation at home, and they may also find it challenging to share workspace with family members or roommates.

Safeguarding the workplace environment against fires and natural disasters can also be difficult for remote employees.

WFH may also incur extra expenses for employees. The government may need to consider imposing legislative measures requiring employers to reimburse employees for reasonable and necessary WFH expenses, for instance, stable Internet connection or perhaps ergonomic tables and chairs.

These ambiguities and the blurring of boundaries would need to be addressed, as they may pose considerable hurdles to the proper enforcement and implementation of the law.

Proposals to amend the existing law are positive moves but observing how they will be implemented on a practical level in the future will only be known when the rubber hits the road.

Duties should be imposed upon employees to protect themselves and to cooperate with their employers in the implementation of their company’s policy or guidelines on WFH.

LEONARD YEOH and PUA JUN WEN

Kuala Lumpur