More than a year has passed since the first confirmed case of the SARS-COV-2 virus. At the end of 2019, it seemed as if COVID was something happening in far-away China, which won’t reach these proportions. However, 2020 has proven that our predictions were wrong.
Many employers have become aware that the only way their business will survive during quarantine and post-quarantine conditions, is – work from home. Of course, the guidelines and recommendations which are to be explained can only be applied to those business activities where working outside of the employer’s premises is possible.
While adapting to the conditions of work from home, the Administration for Safe and Healthy Work, alongside the Ministry of Labor, published a Guide for Safe and Healthy Work from Home on January 14, 2021.
While analyzing this Guide, we noticed certain recommendations that would improve the work of both employees and employers. We will try to explain what can be done so the employer and employees get optimal results in these new circumstances.
As the Ministry sees it, because of specificities regarding work outside of the employer’s premises, to which the employee and the employer are not used, it is inevitable that the Employment Agreements are concluded in good faith. Keeping in mind that this type of work was not dominant up till now, it is crucial that the employer concludes an Employment Agreement with their employee, which regulates work from home. Valid lawful regulation of work from home is even more important since the end of validity of the Decree on Organization of Work from Home. All conditions that have changed concerning work from the employer’s premises have to be defined. What confuses many is the following – how can one manage travel expenses, expenses of using employee’s own equipment, work hours, and maybe the most confusing one – employer’s monitoring of the work tasks performed from home. The Ministry insists that the said Agreement has to be concluded in good faith, with the understanding of both contracting parties.
Generally speaking, one of the employer’s main obligations, especially in regards to such a delicate situation as the pandemic, is to secure adequate working conditions for their employees, to secure the necessary equipment, and to pay attention to work hours and rest periods.
An item of great importance, which is especially emphasized in the Guide, is the fact that the employee who works from home has the same rights as the employee who performs work from employer’s premises. Employment protection treats both manners of work equally, so employers have to pay special attention. Besides providing technical equipment for work, work hours, rest periods, leave of absence, and other employee rights from the work relationship have to be adhered to.
Although many changes were made, work from home cannot be an excuse that would prohibit employees from being entitled to the same rights as before. A special emphasis has to be put on respecting privacy and employee’s personal data, particularly in these circumstances, where many aspects of the Law are modified, except personal data protection.
While working from home, it is necessary that employers recognize and determine the risks of work from home. You are probably wondering why would such a thing even be necessary when the employees are at their homes?
The answer lies in the fact that the Law on Health Insurance and the Law on Pension and Disability Insurance, do not include work from home in their definition of workplace injury. With that, if an employee gets injured while working, in their own premises, and not the employer’s premises, according to the Provisions of these two Laws, they would not be entitled to compensation for the sustained damages and salary compensation.
In order to avoid such unfortunate situations, it is advised that employers should have a Control list. This novelty, which is a part of the Appendix to the Guide, helps when identifying dangers, harmfulness, and is efficient for taking preventive measures, so if it is used in an appropriate way, it can be considered a part of risk assessment. It is impossible to include all risks, so this list only serves to help assess potential risks while working from home. It is clear and it is the first step towards more serious lists, depending on the business activities in question. An important thing to mention is that one should use said list to its full extent, as an advancement and base for risk assessment since it can ease the situation greatly, and not just another as paper which can be added to the pile.
Although many things have changed due to COVID-19, one aspect of labor law hasn’t – risk assessment. Irrespective of the place the work tasks are performed, whether at the employer’s premises or not, each individual that performs work is entitled to be in safe and healthy conditions, which incite prosperity and offer security. Simultaneously, we are speaking of the employer’s obligation to provide a safe working environment, where the employee can safely perform their duties.
Since we are speaking of the employer’s obligation, each employer is obliged to check whether the nature of the business activities they perform, allows such work to be conducted safely and with quality while working from home. The employer has to analyze and take into account whether every employee has enough means and space to to fulfill the conditions necessary for the prescribed quality of work from home. The Ministry’s recommendation is that it is best if a separate room exists, as an office, so the environment is peaceful and sanitary.
The guide lists segments to employers, which the risk assessment has to include, which means that the employer has to process the level of risk and danger in given aspects of the employment relationship. Those aspects are work environment, equipment for computer work, fire risk, the mental health of employees…
Precisely mental health leads us to the next step, which is probably the most important one for employees, for safe work outside of the employer’s premises.
As previously mentioned, mental health represents an extremely important part when transferring one’s work into the premises of their private and family life. Especially if one takes into account that most people live with their families, and if not one, but a few members work from home, and there is no peace and quiet to which the employee is used to, one starts to wonder – how long can one endure mentally, without decreasing the quality of the tasks performed, and the motivation for new tasks.
It is extremely important that, in the Guide, the Ministry of Labor mentions a couple of times that one must find a way to harmonize family and business life, and not allow that no direct contact with the employer and colleagues takes a toll on the employees’ mental health. As one of the ways to overcome these difficulties, it is recommended to organize online meetings more often, in order to keep the sense of unity and belonging. Instead of a lunch break at the employer’s canteen, you can organize an online call during lunch break, in order to offer a sensation of being together with colleagues during lunch.
The Ministry also advises that the employees should stretch and breathe properly, and set up the equipment in such a manner that the desktop and the keyboard allow support for the back while sitting. It is recommended to take short breaks often, in order to allow the employee to physically distance themselves, and do relaxing exercises.
It is emphasized that employers have to take into account the entire situation with the pandemic, and during communication with the employees, ask questions regarding stress, uneasiness, fear. If the employer deems it necessary, they should provide professional help to employees who have difficulty adjusting to the new working conditions, and the pandemic.
The communication between the employer who assigns tasks and the employee who performs them is crucial for task quality. This wouldn’t be a problem if we would be speaking of normal work conditions when the employee could enter the office of their superior without a mask and gloves, and ask for clarity and instructions regarding the task. Obviously, our new reality is wearing a mask and keeping social distance, but it cannot mean that giving unclear and necessary instructions to employees is acceptable. The employees have already lost their work environment, which includes their colleagues, and the possibility to socialize, exchange experience, and further their knowledge, so it cannot be allowed that necessary instructions are not given if the work is to function properly.
Although the whole Guide is dedicated to ease work from home for employees, besides prescribing everything that must be secured, the employees’ obligations are also defined.
Firstly, everyone is responsible for their health, so the employees are obliged to implement all measures in order to keep healthy. On account of the primary obligation, the obligation is to apply all measures prescribed by the employer, to use the equipment that was provided purposefully, and to take care of the equipment and the machines which could endanger the lives or health of employees or members of their families.
Some of the obligations that stand out and are mentioned are well-known in the employment relationship. The obligation to maintain communication with all superiors, to report all inconveniences, difficulties and problems, to follow the employer’s instructions and recommendations, to set up and maintain a particular workspace in a healthy manner.
The guide should serve to give employers ideas as to what actions can be taken in order to keep up the level of productivity, and simultaneously make employees feel pleasant and safe at their workspace.
The recommendations, contained in the Guide are of instructive and non-binding nature, and are mostly based on maintaining physical and mental health of employees. There are no clearly defined obligations of the employer, which if violated, would lead to certain sanctions, since these are not prescribed nor point to application of other penal provisions.
Although not using the imperative voice, nor threatening with fines if the recommendations are not fulfilled, it is recommended that employers follow them, as well as organize their business and work in accordance with the Ministry’s recommendations.
An advantage is given to one of the basic obligations of the employer, and that is securing safe working conditions. Providing such working conditions are in the Guide, and it is insisted upon if a certain number of employees work in the employer’s premises.
If the employers encounter difficulties, the Control list contains detailed items, which should be fulfilled, so as not to come to unpleasant situations, endangering the safety of employees, which also entail the responsibility of the other side of employment relationship.
The Ministry’s intention which can be noticed when analyzing the Guide is that the obligation of the employee, as well as employer, is clearly defined – they have to take care of their mental health, which are put to test during these trying times. The employers who cannot monitor the flow and process of employees who work from home, are worried about the consequences of the pandemic to their business, and the employees are left to find the balance between business and private life, now that both of these take place at the same space.