Impacts of COVID-19 on Working Arrangements

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Key Takeaways

Employers should take stock of their current ‘work from home’ (WFH) guidelines and monitoring systems, and undertake the following activities (if not undertaken already):

• Regular office-wide refreshers, including instructions on how to safely construct WFH set-ups;
• Create a mandatory checklist to be completed by staff before they commence working from home, and require that this be completed again on a yearly basis;
• As part of the mandatory WFH checklist, require that employees send photos of themselves in their home set-up, to allow employers to assess any risks in the actual environment;
• Regular ‘check-ins’ to ensure WFH conditions are still safe and that no new risks have emerged; and
• Where any risks emerge on any enquiries, provide employees with necessary provisions (where reasonable) to assist to remedy those risks in their WFH set-ups.

Impacts of COVID-19 on Working Arrangements

The COVID-19 pandemic brought instant and drastic changes to the way we live and work. Most businesses found themselves working entirely from home, with very little notice, when in most cases this hadn’t previously been an option. Accordingly, the vast majority of employers poured most of their time and resources into setting up systems to enable them to work remotely. Understandably then, only after setting up these systems did many employers have time to consider the potential legal and safety implications of such a significant move.

When exploring these implications, a useful place to start is the case of Hargreaves and Telstra Corp Ltd [2011], which provides a useful insight into relevant liability considerations in a WFH setting. Ms Hargreaves was a Telstra employee, and claimed for injury under the Commonwealth’s Comcare scheme. She alleged that her injury arose from two separate falls while working at home. The first occurred when she went to retrieve medicine from another part of the house and fell down the stairs, hurting her left shoulder. She then fell down the stairs on another occasion while checking if her front door was locked, further injuring her shoulder and leading to surgery.

The first fall was deemed by the Administrative Appeals Tribunal (AAT) to arise out of employment, as the break to retrieve medicine constituted an absence for necessities. The second fall was also ruled as arising out of or in the course of employment, as Ms Hargreaves’ manager had directed her to keep her door locked while working. This was therefore seen as part of her obligation to the employer.

While significantly predating the current environment, the case of Hargreaves nevertheless revealed the key issue at the heart of most WFH disputes, namely ‘when does the connection to employment end?’

The case of Demasi and Comcare [2016] illustrates the limits of that connection. Ms Demasi, an ABC employee, was working from home, and was injured while running during a break from work. The decision of the AAT reflects the same principles used to determine the case of Hargreaves, although this time the AAT decided this was not an ‘ordinary recess’ and thus not compensable.

Even after Covid restrictions finally eased, it became clear that WFH arrangements were here to stay. Employees had a new-found flexibility in the way they worked, which had passed the test of financial viability. Equally, many employers saw the opportunity to enhance their employees’ work-life balance. Most now implement blended WFH arrangements, while some offer full-time WFH positions. New businesses have arisen with no regular place of business, and some workers are even able to perform their duties in geographic locations far away from the physical areas they service.

At present, compensation claims arising in WFH settings make up a small proportion of claims across all schemes. However this is bound to change over time, as WFH arrangements become more entrenched, and a recent AAT decision may give rise an increased number of accepted claims in WFH settings.

Heldt and Comcare (Compensation) [2023] AATA 534

As an employee of the Australian Taxation Office (ATO), Mr Heldt was covered by the Comcare scheme in the event of a work injury. While working from home during the pandemic, he began to suffer right shoulder pain. The alleged cause of the pain was his work set-up at home. Mr Heldt used his kitchen table as a desk, which meant his chair was lower than in the office, creating a greater seat/table height differential than in the office.

Mr Heldt submitted a compensation claim in July 2021 following a diagnosis of a tear in the right shoulder. Comcare denied liability on the basis that the injury was not significantly contributed to by employment, but was more likely to have been caused by his non work-related activities. Mr Heldt appealed the decision to decline the claim, and this dispute proceeded to the AAT.

During the course of the AAT hearing, it was put to Mr Heldt that he had been sent a ‘Working From Home’ checklist by his supervisor, which included a section on ‘setting up workstation from home’. Whilst Mr Heldt did not recall receiving this checklist, he accepted that he must have. Importantly, he was asked to complete the checklist ‘ASAP’ and return it to the supervisor, which he failed to do.

The medical evidence pointed to the presence of a pre-existing asymptomatic shoulder tear, which had allegedly been aggravated by prolonged use of Mr Heldt’s right arm in an elevated position for prolonged periods. Comcare argued that his gym sessions materially contributed to the injury, despite the fact that he ceased these in early 2020. Comcare also argued that using a mouse and keyboard at home could not cause or aggravate a shoulder tear. However the presiding AAT Member disagreed, and preferred Mr Heldt’s evidence that the injury was likely to have occurred in the claimed circumstances, as supported by his expert medical evidence. Accordingly, the AAT decided that Mr Heldt’s right shoulder injury was significantly contributed to by employment, thereby entitling him to compensation.

Wider Application of the AAT’s Decision in Heldt

The AAT does not sit within the court hierarchy, so the decision of Heldt can only be used as a guide by courts and tribunals in different states, who are not bound to adopt any part of the decision. However it is not unusual for the different state-based schemes to consider the AAT’s reasoning, and vice versa.

On a more practical level, employers are duty bound to ensure that the workspace is free from risks to workers’ health, and that any issues are monitored, to prevent injury or illness. It is clear that this duty extends to the home office. Allowing a work-from-home checklist to remain incomplete, without follow-up, will not meet the standard required of employers. The decision of Heldt may be seen as implying that employers have a positive onus to inform and guide employees about how to work safely at home, and to ensure that information is understood, and that the guidance is followed. This positive onus reflects the high standard generally placed on employers within the legal system to engineer risks out of the workplace.

The failure of an employer to exercise reasonable care to ensure a safe WFH environment may also expose them to a negligence claim. Some scenarios which may expose employers to claims of negligence include denying an employee a reasonably requested item to create a safe WFH environment, or refusing a reasonable request to work in the office where there is evidence of home stressors or domestic abuse. Employers must be vigilant at all times when dealing with their employees’ work environments, whether at home or in the office.