“Working from home” and HSWA obligationsduring level 3 and 4 Covid19 restrictions

This article has been written by James Cairney, Partner at Meredith Connell Law, Auckland and is reproduced with his permission.

The Government has announced today (Monday 20th April 2020 a continuation of the Level 4 lockdown until the 27th April when it drops back to Level 3. Even with the return to work under level 3, a large number of workers will still be relocated to their home for work.  This note is not about that.  But rather about obligations when working from home.  


When working from home, both the PCBU and the worker will still have HSWA duties.   When I say “working from home”, what I mean is a worker working on a computer and/or phone, at the dinner table or at a desk, at her or his house.  I am not envisaging a worker who, say, has taken a 6 tonne lathe and mobile gantry crane home, and is working from a home workshop or similar, physically producing product.  If your workers are in that latter category, this article will not really help you!


When an employee is working from home, the area she or he is working in will be a “workplace” (as defined in HSWA), at least while work occurs.  “Workplace” in this sense has spatial and temporal aspects.  It is narrow, and relates to a specific space, at certain times.   It will not the whole home, all the time.  Rather, it will part only of the home, essentially just where the workstation is, and it will only be so while the worker is working there.   


While the area will be a workplace at those times (during work), the PCBU will not normally manage or control that workplace, even at those times.  As such, the PCBU will not normally have duties in respect ensuring that that workplace is without risk. 


That said, the PCBU will have a duty to ensure the health and safety of workers from its work activities (essentially), so far as is reasonably practicable.  And this requires the PCBU to eliminate and, if not, then minimise, risks to health and safety from such work, in each case so far as is reasonably practicable.   The PCBU must do this to the extent it has the ability to influence and control the matter to which the risks relate.  So a PCBU’s duty extends to ensuring the health/safety of its work activities, and to ensuring the health/safety of those things it can control.  This will include physical things like workstations, computers and chairs.  But it will not include the home itself.   


What this all means is that a PCBU with workers working from home will not be responsible for the physical workplace (the home), but will be responsible for the risks arising from the work (including things like stress from work), and for those physical things it does control (such as computers and chairs).  The health and safety of the work undertaken will include “physical”  things like the desk, chair and computer, but it would not extent to the floor coverings or, say, bannisters on stairways in the home.   To give an example, a PCBU will not have a duty in respect of any trip hazards in the home, but will have to ensure, say, the worker is not put under undue stress from work, and is at a workstation that is not bad for the worker’s back. 


The “distinction” between risks from work and risks from the workplace might be a fine one, if it is even a distinction.  But ultimately what matters is simple risk management – you ought to take the same approach to risk management as you would if your workers were at work, but just in a different setting, with slightly different risks. You need to identify risks, assess them, put in place reasonably practicable control measures, and check in to see it is all working.  In fact, WorkSafe, on its Covid-19 dedicated web page, links to its 2017 guidance on risk identification and assessment.  The basics remain the same.


There will be nothing stopping a PCBU from simply asking its workers to turn their minds to the physical environment and any risks from working from home in that environment.  So you should do that.  You could then provide whatever assistance you consider that 1. you can and 2. are reasonable.  And of course, section 58 requires each PCBU to engage with its workers.  Likewise you ought to stay connected to your workers.  As WorkSafe states: “There is no substitute for regular, timely and easy to understand communications with employees”. 


As to monitoring, each PCBU should stay as plugged in to its workers (including any contractors that may well be working from home for it), as is practical.  Common sense must prevail.  And remember what it is you ought to monitor; because the physical risks from home offices are low, but the psychological risks might not be.  In fact, in this context these risks could be quite high.  Your workers might be struggling with child care centres closed and kids at home, say, and a full suite of remote work on top of that, and at the same time feeling disconnected not only from work but from friends and whanau.  Think about the risks facing your workers at this juncture and in particular think about the risks of harm to mental health.  Are any of your workers working big hours?  Are any struggling?  You will be well placed to know this or find out.  Stay connected.  And stay in touch.