When COVID-19 entered Australia and social restrictions became the norm, it forced many New South Wales employees to work from home.
It is likely that once the immediate threat posed by the pandemic finally passes, many people will continue to work remotely into the future.
This growing trend reinvigorates the question of whether a person can claim workers’ compensation or take action against an employer for negligence should they injure themselves while working in the home environment.
What the law says
The Workplace Health and Safety Act 2011 confirms that employers maintain a duty of care towards their employees even when those workers perform their role from home.
This means that should you injure yourself while working from home, you may be able to claim workers’ compensation through a statutory no-fault insurance scheme such as that provided for under the Workers’ Compensation Act 1987.
In any claim for an injury sustained while working from home, the most important element is that the injury occurred in the course of your employment. This can even include making a cup of coffee during a morning tea break. If, however, you logged off from work and were injured while taking an hour’s break to watch television, for example, your claim may not be so clear cut.
In Hargreaves v Telstra Corporation Limited [2011] AATA 417, the Administrative Appeals Tribunal found that Telstra was liable for the the medical and legal costs of one of its employees who slipped and fell down the stairs while working at home, injuring her shoulder. The Tribunal ruled the fall occurred during the course of her employment.
What must an employer do for employees working from home
In order to reduce their exposure to claims of negligence by employees who are injured while working from home, employers have an obligation to take reasonable steps to ensure their employee’s safety.
These obligations are met by ensuring that:
- The employee’s home area meets workplace health and safety requirements. This can be achieved by the employer completing a risk assessment of the home work area.
- The employer provides an internal policy about working from home which gives clear and concise instructions on how the employee can perform their duties safely (including good ergonomic practices, proper workstation set-up, and even stretching exercises). The policy should also be clear on when or how the employer will inspect the home environment and the methods by which an employee can report potential health and safety issues at home. This might include making an office-based employee a specific point of contact for home-based employees.
- The employer should attempt to maintain daily communication with the home-based worker.
Employers need to be aware that the health and safety risks to employees working from home can be significantly different to those faced by office-based workers. Hygiene, renovations, electrical safety, heat and cold can pose unique physical risks in the home environment, while employers also need to be aware of psychological impacts such as isolation, stress, reduced support from colleagues, and even family and domestic violence experienced in the course of working from home. See for example, Workers Compensation Nominal Insurer v Hill (2020) NSWCA 54.
Employees also have obligations to minimise or mitigate any risks to their own health and safety by setting up a properly designated work area that excludes anyone not related to their work during business hours.
The status of contractors and freelancers
The growing gig economy is based on flexible, temporary, or freelance jobs, often involving connecting with clients/customers through an online platform. In New South Wales, this growing economy means many people will now work from home but without the protections offered to those considered employees.
This includes where a contractor or freelance supplier is injured at home in the course of their work for a business. In NSW, they are not automatically covered by the employer’s workers’ compensation policy and will need their own insurance policy in order to make a workers’ compensation claim in the event of injury.
Expert legal guidance
If you are either an employer or employee with questions about working from home and what to do if you’ve been injured while doing so, contact our Best personal injury lawyers today on (02) 8280 6900 for a free case evaluation. We’re highly experienced personal injury lawyers with a proven track record managing complex workers’ compensation and common law negligence claims, and can help save you time and money in navigating a sometimes complicated area of the law.