Since the passing of the 2015 Health & Safety at Work Act and the 2001 Accident Compensation Act, work practices have changed significantly. When the original laws were enacted it was uncommon for employees to work from home but it is now widely practised and it is predicted that in the future, more and more people will work from home.
As a result of Covid-19, much of the New Zealand workforce was forced to work from home during lockdown and a good chunk of those – including a large number of lawyers and other legal professionals – are now working from home or splitting their time between the home ‘office’ and the law firm or other place of work. The present laws do not reflect current employment practices and need to be reviewed.
The current law has the following consequences for employers:
Employees working from home
The home where an employee is working is a workplace as defined in s 20 of the Health & Safety at Work Act 2015. If an employee who is required or permitted to work from home suffers an accidental injury while working, it will be a “work injury” as defined in s 20. Section 23 includes a list of “notifiable injuries or illnesses” which are covered by the Act and could include Covid-19.
The employer will be responsible as a PCBU (Person Conducting a Business Undertaking) under s 20 of the above Act, for the health and safety of its workers. The PCBU must ensure the work area in which the employee is working at home complies at least with the equivalent health and safety standards of the normal place of work provided by the PCBU where that employee usually works. Working at the home kitchen table with children and pet animals underfoot or in the spare upstairs bedroom accessed by a steep stairway with inadequate handrails may not qualify. If the workplace does not comply, the PCBU could face prosecution and significant fines have been imposed by the courts.
It is also a “work-related personal injury” as defined in s 28 of the Accident Compensation Act 2001 which includes, among other things, injuries suffered during a break for meal, rest or refreshment and includes cardio-vascular or cerebro-vascular episodes caused by physical effort or physical strain in the employee performing his/her employment task or is caused by work-related gradual process disease or infection.
If the employee is incapacitated, the employer must pay “first week” compensation for the first seven days from the date of the injury. The ACC will take over management of the claim from day eight until the employee is medically certified as fit to return to employment.
ACC Experience Rating system
If the employer is in an industry where the ACC is operating an experience rating system, an ACC claim for a work injury that occurred at the employee’s home will be recorded against the employer’s claims record as a work injury and could result in an increased levy or a penalty.
Managing the claim
A PCBU must have regard to the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 which impose significant rules, duties and controls which must be complied with including identification of hazards.
Although liable, the PCBU has no legal right to enter and inspect the place in the private home where the employee is working or intends to work or insist on up-grades to meet health and safety requirements. Complications can arise not only in relation to privacy law but particularly if the employee is working in rented accommodation.
It will be difficult for an employer to investigate a claim for a “work injury” without the legal authority to enter and inspect the employee’s home “workplace” to assess its suitability as a place for the employee to work, but also to examine the circumstances and evidence supporting a claim for a work injury.
Many other problems will arise depending on the “home” circumstances of the employee which will have an impact on employer’s responsibility for the health and safety of employees working from home.
The current law is no longer fit for purpose in relation to persons “working from home” and needs to be urgently reviewed.