Covid-19 has changed the world of work. Employers were figuratively pushed into the deep end during the first quarter of 2020 and forced to sink or swim in a world without the usual life preservers of a modern workplace environment. Tele-commuting, remote working, flexi-working, and home working all became the new norm. The change has been so drastic and unimaginable that we are unlikely to fully return to the workplace of the past.
A year on, the overall experience has, depending on the sector, largely been positive for employers and workers alike; productivity was maintained for those business activities where it was possible to work remotely in the first place, while employees have saved on commuting costs and, to varying degrees, been better able to juggle work and family life than before the pandemic. However, new HR and legal issues have started to emerge, none perhaps more important than concerns over employee wellness and mental health.
Employment lawyers today are busy helping clients anticipate new challenges facing their workforces. While continuing to work from home themselves, IEL welcomes leading employment lawyers from five countries, and across three continents, to discuss how multinational employers can safeguard their workers from mental ill-health and best mitigate the impact of such issues when they arise.
Vikram: How do occupational health and safety standards apply when working from home? What are the key risks of non-compliance and how can business best adapt policies to mitigate these?
Kathryn: Employers are generally required to take reasonable care of their employees’ health and safety at work and to provide and maintain a place of work for employees that is safe and without risks to health. “Workplace” is often defined broadly to include any place where employees work, meaning that occupational health and safety obligations on employers often extend to the employees’ homes in the context of work-from-home arrangements. Employers should ensure that they continue to fulfil their obligations in this area in relation to their employees who work from home, otherwise, they may find themselves liable for breach of their statutory duties, or for being negligent or for disability discrimination.
Employers are also generally liable to pay compensation to an employee who suffers a personal injury by an accident that arises in the course of employment. Therefore, if an employee sustains injury in the course of work when they are working from home, employers may be liable to pay compensation to the injured employee. Although this issue is yet to be tested in the Hong Kong courts, a few Australian authorities are affirming the position that employers are liable to pay compensation to employees who sustain an injury in the course of working from home.
Businesses should, therefore, have in place a comprehensive work-from-home policy and ensure that employees follow it through instruction, management, incentivisation, and, ultimately, discipline.
Béatrice: Under French law, the employer must protect the physical and mental health of its employees. There is no provision that excludes this obligation for teleworkers. They have the same rights as employees working at the office.
To comply with this obligation, the employer must make sure that working conditions are optimal. However, it is much more difficult to control an employee’s home environment than in the office. The national agreement of 19 July 2005 provides that the employer must visit the employee’s home to check their equipment and electrical installation. This measure is very difficult to implement and requires the employee’s approval. The national agreement of 26 November 2020 takes into account this difficulty by saying that “the employer cannot have complete control of the place in which the telework is done”. However, the employer’s legal obligation remains the same despite this provision. For example, the employer may provide ergonomic chairs and plants to employees.
Philip: The federal Occupational Safety and Health Act of the United States general duty clause requires that employers shall furnish to each employee a place of employment that is “free from recognised hazards that are causing, or are likely to cause, death or serious physical harm”. Thus, the employer has an obligation to provide a safe workplace. The obligation applies to work performed by an employee in any workplace within the US, including a workplace located in the employee's home. According to the federal Occupational Safety and Health Agency (OSHA), which administers the Act, even when the workplace is in a designated area in an employee's home, the employer retains some degree of control over the conditions of the “work at home” arrangement. Thus, as a precondition for home-based work assignments, the employer should ensure that the employee has safe and healthful working conditions.
Employers fulfil this duty by implementing standards for safe working conditions, providing guidelines to employees who work from home, requiring employees to agree that their work-from-home arrangements meet these standards, and providing training on these standards. Training typically includes issues like ergonomics, lighting, cooling, heating, ventilation and the use of any employer-provided tools that may cause a health hazard. The type of training that should be provided will be measured by what a reasonably prudent employer would do under the circumstances, taking into consideration such factors as the nature of the potential hazards and the abilities of the employees. It will not always be necessary for training to be in written form. On the other hand, written training alone may not be sufficient.
Employers are not expected to inspect employees’ home-work arrangements, as doing so could infringe on employee privacy and would be considered quite intrusive. Similarly, OSHA normally does not carry out inspections of home-based workplaces. On the other hand, employers must take steps to reduce or eliminate any work-related safety or health problems of which they become aware. Where the employer provides work materials for use in the employee’s home, the employer should ensure that employer-provided tools or supplies pose no hazard under reasonably foreseeable conditions of storage or use by employees.
If an employee is injured at home in the course of performing their job duties, the employee’s exclusive claim for damages would most likely be through worker’s compensation insurance, which is a state-based benefit, and which generally bars any claims for damages that an employee might otherwise bring in court. However, OSHA could impose fines against an employer who fails to take reasonable steps to ensure that their employees are working in a safe environment.
Kunle: With respect to working from home, employees are generally responsible for their health and safety under Nigerian law. This is because Nigerian labour laws are structured in such a way that health and safety standard requirements apply to employers only when employees are on premises under the direct or indirect control of the employee or when employees are required to undertake an assignment on another premises as long as such assignment is carried out during the hours of work and for the purpose which the employee has been sent to the premises to carry out. This is irrespective of whether the premises is under the control of the employer.
Vikram: Working from home brings a new focus on mental health issues, particularly among young people, those in unsuitable accommodation and parents home-schooling children. What duties and responsibilities lie with the employer in this area? What are the best examples of internal policy responses we’ve seen so far?
Béatrice: In France, teleworking is mandatory in positions that are tele-workable. However, to counter certain psychosocial risks such as isolation, employees may work from the office once a week if they request it. The employer may also set up psychological support services for workers such as telephone assistance and therapy. Finally, companies can rent co-working spaces or hotel rooms to help employees who cannot work from home due to the presence of young children or insufficient equipment, etc.
With the lockdown coming back, the French government has placed a new obligation on the employer about telework. From now on, and with no date of end, the employer must establish an action plan for the mobilisation of telework. This action plan must provide for measures to reduce the time employees spend at the office. However, the government did not impose any guidelines to this action plan (unilateral engagement, memorandum, or company agreement). However, the employer will need to be able to present to the labor inspector the measures implemented in order to reduce the time employees spend on site.
To help employees with children, the French government has set up a childcare mechanism. The employee is paid 84% of their usual salary and can stay at home to look after their children under 16 or disabled if schools are closed (which is the case in France until 26 April 2021) or if the children have been in contact with people infected with covid-19. The employee must also prove that their children’s school is closed or that their children have been in contact with a person with covid. Only one of the two parents can benefit from this mechanism.
Kunle: Nigerian labour laws generally do not mandate employers to be responsible for the living conditions of employees while working from home. However, the attitude of the National Industrial Court (NIC) over the years has been that employers adopt international best practices. The concept of adopting such practices is far-reaching and may be open to various interpretations by the NIC. The test would usually be whether or not employers are required to be responsible for ensuring a conducive work environment for employees while working from home. Notwithstanding this, some employers, mostly multinationals, have taken steps to ensure their employees have a well-adjusted life while working from home, as well as putting policies in place that address mental health issues in young employees.
Some employers have implemented policies such as the right of employees to “shut out” or “disconnect”. We have also seen several employers providing their employees with home-office equipment or funds to set up a conducive home office. We have also seen employers partner with mental health professionals and organisations to address some of the issues faced by younger employees. Some employers provide free gym subscriptions to their employees to discourage the sedentary lifestyle associated with working from home.
Philip: Employers have an obligation under both US federal and state laws not to discriminate against individuals with disabilities (which may, of course, include mental health issues), and to make reasonable accommodations for individuals with disabilities to help them perform the essential functions of their job, unless providing such accommodation would constitute an undue burden to the employer or create a direct threat to the health or safety of the employee or other employees. Employers, therefore, may have an obligation to make an arrangement for an employee with mental health conditions that may better aid the employee to perform their job. Such accommodations may include, for example, in the case of parents with home-schooling children, to permit them to rearrange their schedules to better suit their home obligations.
To be clear, however, the legal duty to accommodate only arises in the case of an employee with an actual, verifiable disability. While employers, of course, are free to discuss with employees different work arrangements that may aid their ability to work from home, the legal duty to accommodate these difficulties may not arise in every circumstance. I think it is fair to say, though, that with the pandemic, employers are generally trying to be accommodating with employees and will make suitable arrangements so long as their business is not unduly burdened by the accommodation and so long as employees do not abuse the privilege.
Kathryn: Globally, mental health has a vague definition and it tends to fall between legislative gaps. Generally, it tends to feature indirectly in most countries’ health and safety legislation. For instance, in Hong Kong, though an employer’s duty to take reasonable care of their employees’ health and safety at work does extend to safeguarding employees’ mental health, there are no specific, separate obligations on employers with regard to protecting employees’ mental health.
We have seen employers implementing assessment of work-related mental health issues regularly from the point of view of potential risk to employees. This may include assessing factors that could cause employees to experience work-related stress, such as overworking, inadequate training, harassment or job insecurity. We have also seen employers offering wellness programmes and resilience training. Unsurprisingly, given that they have less resources, we have found that in comparison with large businesses, SMEs are less likely to step up mental health initiatives to combat the challenges associated with increased working from home.
Vikram: How does the increased focus on the right to disconnect impact the management of a global workforce? Have we seen examples of international employers adapting to this evolving issue?
Philip: In the US, there is no groundswell of support for a legal right to disconnect. On the other hand, we have seen private employers provide unscheduled days off during which employees are not expected to connect online, and they are given direction to use their day in personal pursuits, whether reading a book or spending time with family.
However, significant wage-and-hour issues may arise out of an employee’s failure to “disconnect.” Employers have an obligation to pay their hourly employees for work they perform at home, whether in checking and responding to emails and text messages, or otherwise logging on to their computers. Working remotely makes it far easier for employees to log excessive hours, for which they may be entitled to overtime pay. It is therefore important for employers to put in place clear guidelines around work hours, and ensuring employees do not feel obligated to work during off-hours. This will normally include strong directions to managers that they must not require employees to work during off-hours, and perhaps requiring any overtime work be approved in writing. Employers must track hours carefully and take steps to immediately instruct employees and managers to cease working overtime without approval.
Béatrice: The right to disconnect ensures that employees are not connected to professional digital tools outside working hours. The purpose of disconnection is to respect the employee’s personal and private life. Since 2016, companies with more than 50 employees have had to negotiate annually with union representatives on the right to disconnect and more generally on the quality of life at work. Most agreements contain a list of advice given to employees, but some companies are taking stronger measures. Indeed, some cut off access to the company network in the evenings and on weekends.
Kunle: With the need to work from home while, at the same time, balancing employees’ mental health, comes the right to disconnect. Although very crucial to mental health and overall quality of life, the right to disconnect comes with a significant risk to employers portrayed by the potential difficulty in managing a workforce, especially a global one. Employers have come to realise the need for employees to have a work-life balance especially as they work from home. However, it may be a daunting task to balance a right to disconnect with the urgent business needs of the company, especially for those in certain industries where urgent attention is required for almost every issue.
Yes, some employers are beginning to put policies in place which encourage strict closing hours. Some employers have also restructured their operations to have different groups working in shifts.
Kathryn: Not all areas of the world are equal when it comes to the recognition and prevention of stress at work and mental wellbeing. Asia-Pacific, in particular, appears to be behind the rest of the world. For instance, in Hong Kong, there is a long working-hours culture, there is a stigma attached to talking about stress and wellbeing, and the right to disconnect is not recognised.
That being said, international companies operating in Asia-Pacific are becoming more aware of the concept of the right to disconnect and we have seen employers adapting by, for example, structuring in non-work time for employees and encouraging employees to take time to look after themselves.
Vikram: Given there may be significant litigation around mental health issues arising from working from home, what can employers do to mitigate these risks?
Kunle: Employers can put policies in place to ensure the mental health of their employees are adequately addressed and taken care of. Employers must also understand that there must be a balance between addressing its urgent needs and their employees’ mental health and quality of life.
Philip: Most US employees receive their health insurance through plans that are provided and often administered directly by their employers. Many of these medical plans provide access to psychiatric counselling services, or to “employee assistance programmes,” which may provide confidential counselling to employees. During the pandemic, many employers have taken the opportunity to remind their employees to make use of these services.
Additionally, many employers have provided employees with access to childcare support and other third-party resources to ease the burden on families.
Employers should also instruct their managers to bring any employee mental health issues to the attention of their HR departments. Managers should not try to resolve these issues themselves. The obligation to accommodate a disabled employee raises quite complex legal issues including issues around privacy as the employer may have to ask the employee to provide information from their healthcare providers. Even the best-intentioned managers who try to take matters into their own hands by working with the employee may place themselves, and the employer, at legal risk.
Finally, employers should be sure to review all their employment policies concerning accommodation of disabilities, internal complaint procedures, and paid and unpaid leave, to ensure they reflect best practices and comply with all applicable federal, state, and local laws.
Béatrice: The French labour code provides a list of the measures that employers need to comply with, which are required to ensure the safety and physical and mental health of employees. However, it does not contain any provisions specific to teleworking. Nevertheless, the employer can notably organise training sessions to enable management to help teleworkers. In other words, the goal is to ensure a greater management presence, without this being perceived as a burden for employees and being attentive, without being intrusive.
The employer can also set up collective working hours and remote communication means to facilitate exchanges between employees and to maintain social links, such as videoconferencing.
Kathryn: Employers cannot ignore mental health issues; they need to proactively make mental wellbeing part and parcel of a company’s culture. Employers should encourage employees to be forthcoming about any mental health issues and offer support, either directly, or through their healthcare provider or employee assistance programme. Employers should also be trained to spot mental health risks in employees. One way to allow opportunities for employers to spot risk is through monitoring, for example, via pulse surveys where employees are asked how they are feeling at regular intervals.
Vikram Shroff is a partner at Nishith Desai Associates, India; Béatrice Pola is a partner at Proskauer Rose, France; Kathryn Weaver is a partner at Lewis Silkin, Hong Kong; Kunle Obebe is a partner at Bloomfield Law Practice, Nigeria; Philip M Berkowitz is a partner at Littler Mendelson, New York