2022: The year of WFH compensation claims?

In a world of virtual meetings, telecommuting and flexibility, employers need to appreciate that there has been a significant shift in the location of WHS risks – and a new strategy is required, writes Travis Schultz.

The global pandemic has certainly created a remarkable upward trajectory in the percentage of employees choosing to work from home.

In June 2021, the Families in Australia Survey: Towards COVID Normal report found that 67 per cent of respondents to the survey were now sometimes or always working from home.

Results from a 2019 survey conducted by Melbourne University’s HILDA (Household, Income and Labor Dynamics in Australia), showed that only around 8 per cent of employees had a formal work-from-home arrangement averaging one day per week. Back in 2016, Australian census data suggested that only around 5 per cent of workers would work from home rather than a formal workplace.

Even though these studies were carried out by different organizations and measured different elements of working from home, the percentage of work-from-homers could be surmised as growing from as little as 5 per cent to as much as 67 per cent in just five years . Wow!

Previously, most employers demonstrated a reluctance to facilitate arrangements where visibility of an employee and their output was poor. Similarly, until we were recently forced into remote work, employees generally lacked evidence to support their claim that they could be just as efficient working from home as in the workplace.

Today, whether employers like it or not, flexible work-from-home arrangements seem destined to be a feature they will be expected to provide their employees. The WFH genie is well and truly out of the bottle.

The genie, however, has granted a wish that comes with a heightened risk for employers. Rushed arrangements to facilitate remote work to ensure businesses remained open created a huge workplace health and safety (WHS) risk.

Business owners, in a position of immediate peril, could be excused for focusing on operational requirements rather than WHS obligations. However, as the pandemic unwinds and business resumes to its new normal, 2022 will become the year of workers’ compensation claim by remote workers unless employers quickly recalibrate their focus on WHS.

Each Australian state imposes on employers an obligation to ensure that the work environment is without risks to health and safety, so far as reasonably practicable. The statutory obligation requires the provision of adequate facilities for the welfare of workers whilst carrying out their work.

In Queensland, the Work Health and Safety Act 2011 defines a workplace as “a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work”. There is little doubt that such a definition covers the home environment if that is where a worker is required or permitted to undertake some or all of their employment duties.

These work-from-home arrangements create a great deal of complexity for employers in managing WHS risks. In their homes, the employer has far less ability to control the work environment of employees and retains very little or no visibility. Despite this, an employer potentially remains legally liable for any misadventure that occurs – such as an employee slipping on their wet kitchen tiles whilst making a cup of tea.

With so many competing responsibilities and concerns during the pandemic, employers could well be excused for doing little to manage the risk of workstations in an employee’s home. However, once workers’ compensation claims begin to roll in for injuries suffered at home whilst working, it seems inevitable that an increasing incidence of claims will focus employer attention on the issue.

One of the most obvious risks faced by workers is the ergonomic set-up of their workstations and desks. Generally, the desk and chair used are not supplied by an employer and are simply whatever the employee had available to them when work-from-home arrangements commenced. Poor ergonomic set-ups are well known to be a key cause of injuries when utilized for long periods of time.

If employers want to avoid an increasing number of claims by work-from-homers, they would be well advised to:

  • Arrange an ergonomic assessment of workstations and their set-up;
  • Undertake an assessment of hazards in the workplace such as trip hazards from cables, electrical cords, mats or rugs;
  • Put in place a system for training of staff to identify risks in a workplace and, in particular, risks associated with the ergonomic set-up of their workstation;
  • Develop a checklist for work from home employees to consider and then sign off on as evidence that they have received the appropriate training and instruction; and
  • Ensure provision of a first-aid kit and smoke alarms.

Work from home is no longer a luxury enjoyed by a privileged few employees but rather an expectation of a growing proportion of the workforce, especially within professional services enterprises.

In a world of virtual meetings, telecommuting and flexibility, employers need to appreciate that there has been a significant shift in the location of WHS risks – and a new strategy is required or face an explosion of workers compensation claims made by work-from-homers in the future.

Let’s hope that the risk of employees suing for emotional isolation due to working from home never comes out of the genie’s bottle. Or that employers never become responsible for a worker choosing to work from an Airbnb in some exotic location!

Travis Schultz is the managing partner of Travis Schultz & Partners.

2022: The year of WFH compensation claims?

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Last Updated: 26 November 2021

Published: 29 November 2021

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