For some time now, working from home has been the motto to keep the number of Covid-19 infections under control as much as possible. In view of the recent sharp increase in the number of infections, it looks as if more and more workers – where possible – will be working from home during the coming dark period of the year. Unfortunately, the end of this unpleasant period is not yet in sight. All the more reason, as an employer, to pay attention to the medical and legal risks of this ‘new normal’ for the time being.
Employer’s duty of care
In any case, it is clear that the employer has a duty of care in relation to the workplace of his employees. This follows from Section 7:658 of the Dutch Civil Code, which states that the employer must take such measures and give instructions for the performance of work as are reasonably necessary to prevent the employee from suffering damage in the performance of his duties. This duty of care is further implemented by the regulations in the field of working conditions. Exactly which measures can be required of the employer, however, depends on the circumstances of the case. There is therefore no absolute guarantee of worker protection.
According to the working conditions legislation, when employees work from home, this is ‘place-independent work’. This is subject to an alleviated working conditions regime: for example, the employer does not have to comply with obligations relating to fire hazards and escape routes. This concerns matters which would not be reasonable to require the employer to check or offer at the employee’s home.
However, especially now that it looks as if the situation will last considerably longer, the employer must provide an ergonomically designed home workplace. This may mean that the employer must provide employees with an ergonomic chair or desk. If that would not be reasonable (for example, because it concerns a very large group of employees), it would be sufficient for the employer to give clear instructions about the ergonomic design of the workplace (with attention to, for example, working posture and good lighting). This can be checked by the employer or occupational health and safety expert on the spot, but often – especially in the present day and age – photographs or video, or a checklist to be completed by the employee himself, are sufficient to check whether the home workplace is in order.
In addition, the employer should pay due attention to (and preferably have policy on) limiting the so-called psychosocial consequences of working from home. We all read in the reports that there is a considerable increase in stress, depressive complaints and a tendency to overwork because employees (have to) work from home and their interpersonal contacts are limited. This will only increase in the coming dark times. This is, of course, difficult for the employer to detect remotely. It is therefore important to have regular contact with the employees in order to keep an eye on the workload and other circumstances. In certain cases, it may be advisable to have an employee contact the company doctor as a preventive measure.
In any case, it is now very important for employers to take stock of the risks of working from home. What work is being done from home? By how many employees? How do they work? What do the employees need to be able to work properly? What are the risks in the work? Think of overexertion problems, insomnia, back problems, RSI, etc. Include these risks in the Risk Inventory and Evaluation (RI&E). The Working Conditions Act not only requires that employers have an RI&E, but also that it is up to date. The SZW Inspectorate also checks whether employers regularly update the RI&E and whether it is complete. A new risk requires new measures in the plan of action. This is aimed at preventing the risks as much as possible and limiting the consequences.
In addition, the Works Council and the working conditions policy go hand in hand. It is therefore very important to involve the Works Council in such adjustments. After all, the Works Council has the right of consent when it comes to drawing up, amending or withdrawing the RI&E and the plan of action.
In any case: in order to avoid getting into liability discussions, it is advisable for all employers to pay attention in the RI&E to the home workplace. If employers fail to do so, both parties run a risk: the employee on health complaints and the employer on employee claims for damages. Especially in these difficult times for everyone, no one wishes to be confronted with additional complications.
Questions on this subject? Feel free to contact us.
Caroline Mehlem, Employment lawyer