What to consider when employees work remotely?

As the COVID-19 pandemic continues in 2021, many companies have maintained their arrangement of working remotely or work from home (WFH). The main areas of consideration for an employer are:

1. Compliance with Occupational Safety and Health Ordinance (“OSHO”) and the common law duty of care:  Under Section 6 of the OSHO, an employer has the statutory duty to ensure the health and safety at work of its employee. If an employer fails to “provide or maintain a working environment for the employer’s employees that is, so far as reasonably practicable, safe and without risks to health” intentionally, knowingly or recklessly, he is liable on conviction to a fine of HKD200,000 and six months’ imprisonment.

Therefore, the employer has an obligation under OSHO and a common law duty of care to make sure that the working environment is safe. In case of WFH arrangement, employers are recommended to take reasonable care for their employees and make sure the working environment is suitable. If the employee is injured during the course of work, the employer may still be liable to the compensation depending on the facts of each case.

2. Compliance with the Employees’ Compensation Ordinance( Cap. 282) (“ECO”): As per the ECO, employers are  liable to pay compensation for personal injury by accident that arises out of and in the course of employment. Also,  as per section 15 of the ECO,  the employer has an obligation to file a Form 2 to the Labour Department within 14 days of the accident . It is important to note that ECO does not specifically state that an employer will be liable for any accidents while the employee is working from home. But depending on the facts of each case, the employer may be held liable to pay compensation for the injury sustained when working from home. It is recommended that employers review their current employees’ compensation insurance policy  and consider whether any additional insurance coverage is needed.

3. Compliance with the Personal Data (Privacy) Ordinance (PDPO):  The Privacy Commissioner has issued guidelines on handling personal data of employees working from home. These guidelines enable employees to enhance data security and protection of personal data privacy during the WFH arrangements. Following are the three guidance notes issued by the PDPO:

• Protecting Personal Data under Work-from-home Arrangements: Guidance for Organisations
• Protecting Personal Data under Work-from-home Arrangements: Guidance for Employees
• Protecting Personal Data under Work-from-home Arrangements: Guidance on the Use of Video Conferencing Software

It states that the employers may set out policies or issue guidelines, such as on:

• transfer of data and documents out of the organisations’ premises and corporate networks
• handling data breach incidents;
• provide training to the employees to make them aware about cybersecurity threats and how to handle them.

It is important to note that these are only recommendations by the Privacy Commissioner, therefore, employers do not have a legal obligation to comply with them.

4. Formulate a Work From Home Policy : A work from home policy aims to provide guidance for employees who work remotely from the Company. It outlines the:

• Eligibility Criteria- Not every task can be done remotely, for example, customer services. You should lay out which teams are eligible to work from home and which must stay at the office.
• Application procedures (if any) to apply for the work from home arrangement
• Working hours – The best practice is to fix the hours just like the normal working hours in the office, say, 9am – 5pm. If your company has a more flexible working style, you can set the number of hours that they are supposed to work.
• Equipment policy- It is important to specify if the relevant equipment will provided to the employees
• Confidentiality – The policy should outline the steps for protecting  confidential information and reporting of any data security breaches. In addition, employers may also review their confidentiality agreements with employees to ensure they include sufficient provisions for the protection of confidential information.
• Health and Safety of the employees –  Employers have the same health and safety responsibilities for employees when they are working from home. Therefore, you must outline in the policy as to how you will manage the health and safety of the employees working from home. For instance, employers should ask employees to notify the employer immediately of any safety issues with WFH, including any “near misses” or accidents.
• Employees’ duties and responsibilities for employees who plan to work from home.

Can my employee request work from home?

If an employee wishes to work from home because of the fear of danger from disease, he is able to terminate his employment contract without notice or payment in lieu. Therefore, an employer should always ensure the working environment is safe and up to the hygienic standards which will not breach the duty of care and trust, or else the employee is entitled to constructive dismissal and might leave employment immediately.

Under the present circumstances (as of August 2021), the government has developed a clear guidelines and practices to cope with the pandemic and if the employer follows such rules, it is unlikely that the employees can establish the requirements of the employer’s offices are not met. Employers can ask the employee to work in the office specified in the employment contract if the employers have complied with the guidelines. It is noteworthy that the employer should consider the individual conditions case-by-case.

Key Takeaway

• Employers have the same health and safety responsibilities for employees when they are working from home.
• Employers must ensure compliance with the Employees’ Compensation Ordinance
• It is important to have a work from home policy to provide guidance for employees who work remotely from the Company on eligibility, equipment, data security, health and safety.

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