Working from home: privilege and/or burden?
Rad od kuće – privilegija i/ili opterećenje?
Working from home has become particularly important manner of organization of work during the Covid-19 pandemic, as its inherent flexibility has been complemented by its wide use as a measure to help stop the virus from spreading.
As such, working from home and remote work have increasingly been in the focus of public debate and activities of the competent authorities, especially as the absence of clear guidelines has resulted in high level of legal uncertainty in labour relations in Serbia. Namely, the Labour Law dedicates only two articles to the matter of work outside employer’s premisses. Nevertheless, both the Labour Law and contain regulations setting out the rights, duties, and responsibilities of both employers and employees include a number of general rules that apply both in cases of working in and outside employer’s premisses – including work from home. These rules, since they represent a norm of a general nature do not provide clear answers nor guidelines for acting in various disputable situations which arise from the specific nature of this model of work. Consequentlyy, until laws are amended for the purpose of more precise regulation, legal opinions and instructions issued by competent authorities responsible for enforcing labour legislation are crucially important for ensuring compliance, and, as such, this article will primarily rely on them.
Current conditions specially actualize the debate about the pros and cons of remote work in which it is stated that the work from home increases the possibilities for integration of the people with disabilities, enables better balance between professional and private life and permits greater flexibility of employment relations which enhances the work results. On the other hand, there are completely opposite opinions on these matters so it is stated that the work from home leads to professional isolation, erases the boundary between private life and work, and causes working hours to blur into leisure time.
Consequently, in relation to the work from home, it seems that currently the most significant issues are as follows:
- Legal basis for introducing work from home;
- Reimbursement of employee expenses;
- Safety and health at work,
and, as such, this article will explore these aspects in detail.
Legal framework and basis for introducing work from home:
Article 42, paragraph 3 of the Labor Law regulates the additional elements which an employment contract of employees who work from home must contain. Previously mentioned leads to the conclusion that: work from home can be introduced only on the basis of mutual consent of the employer and employee, i.e., on the basis of employment contract or annex to the employment contract.
Previously mentioned conclusion is particularly significant since during the state of emergency introduced in Serbia to combat the spread of Covid-19, the Government of Serbia, with co-signature of the Serbian President, enacted the Regulation on the Manner of Organization during the State of Emergency. Mentioned Regulation obligated the employers to permit employees to work from home wherever such organization of work was possible from the aspect of company’s general acts and employment contracts. If such method of organization of work was not regulated in company’s general acts and employment contracts, the Regulation allowed employers to introduce such organization by their unilateral decisions and that way, created a special legal basis for introducing work from home. The state of emergency was lifted on 6 May 2020 and accordingly, all regulations issued during its validity, including the provision allowing introduction of work from home on the basis of employer’s decision ceased to apply. Nonetheless, a large number of companies continued the practice of having employees work from home even after the state of emergency ended, whereby the available information suggests that this was done without valid legal basis since these companies have not concluded annexes to the employment contracts with their employees, which at this point remained the sole legal basis for introducing work from home.
Since we concluded that work from home can be introduced only on the basis of employment contract, i.e., annex to the employment contract, it is necessary to find adequate solution for these employers that introduced work from home only as a preventive and as such time-limited method of organization of work at the employer which after the cessation of danger cause by COVID-19 epidemic will be replaced again with the office work. Namely, we believe these employers have two possibilities:
First possibility for companies is to conclude annexes to the employment contract without limitation of the period of its validityin which case, once there is no longer a need for the employees to work from home, the employers will have to once again offer and sign annexes to the employment contract with their employees, all for the purpose of transferring them to another workplace at the same employer, i.e., for the purpose of returning them to work at offices. If an employee refuses such transfer, we believe the employer will be authorized to terminate this employee’s employment contract due to the justified reason on employer’s side. Given the absence of clear legal rules, it is not certain whether, and, if so, to what extent, the , courts will get involved in the assessment whether the employer had justified reason to return employees to work from home, since the very fact that working from home had previously been offered reveals this arrangement is possible method of organization at the employer. To mitigate this risk, employers should be careful in wording their reasons for seeking a return to the offices.
Second option for companies is to conclude annexes to the employment contract with the limited period of validitywhich expiration would lead to the re-application of the provisions of employment contract which were derogated by the annex. Withing this option, the main problem is setting the time limit, especially since it is not certain how long the pandemic which for most of the companies is the sole reason for introducing the work from home will last. Solution to which it will be regulated in annexes that they will last for a specific period of time (for example, 3 months) will lead to the need delivery of new offer and conclusion of the new annex to the employment contract, if after expiration of this period there is still a need for this type of organization. Bearing in mind previously mentioned, possible solution will be to bind the duration of the annex to the period of duration of the act by which the epidemic was announced, in the manner that the annex will cease to apply simultaneously, or in a short period (as an adaptive period which is recommendable) after that act cease to apply. In Serbia, previously mentioned act is the Regulation Declaring an Epidemic of the Infectious Disease Covid-19, made pursuant to the Law on the Protection of the Population from the Infectious Diseases. This approach is complicated by the fact that, whilst identifiable, the expiration date of such addendum is not clearly identified, and it is disputable whether the employer can expect from the employees to be familiar with the date of regulations’ termination, and, as such, disputable whether it will be reasonable to expect for them to show up for work on that particular date. Given these considerations, in case of deciding for this option, it is recommendable for employers to regulate in annexes the mechanism for notifying the employees about the exact date on which they should return to the workplace.
For an employment contract or an annex to such contract to constitute valid grounds for introducing work, from home in addition to the mandatory elements which any employment contract must contain, it should include following issues:
- working hours, pursuant to performance standards;
- manner of conducting supervision of the employee’s work and quality in performing jobs;
- work tools, which the employer is required to procure, install, and maintain;
- use of work tools owned by the employee and reimbursement of costs for its use;
- reimbursement of other expenses and the manner of determination of its amount;
- other rights and obligations.
These issues stem from the specific nature of remote work. For instance, given the inability of managers to directly observe employees whilst at work, which is usually the primary form of supervision, other oversight arrangements must be found and clearly regulated. In practice, supervision generally takes place with the aid of a variety of online platforms, keeping and delivering the work reports, client-side verification, etc. Remote work also requires ascertaining who is responsible for providing the equipment for work (work tools). The inherent nature of working from home may lead to an employee using their own computer or telephone for work, so it is important to define how any costs incurred by the employee in this regard will be reimbursed by the employer.
The Labor Law stipulates that its provisions on the allocation of working hours, overtime, redistribution of working hours, night work, breaks and leaves, all apply to employment contracts of the employees who work from home, unless otherwise regulated in company’s general act or that contract. In addition, a quantity of work and deadlines for execution of the tasks conducted on the basis of employment contract for work at home cannot be determined in the manner which prevents the employees to exercise their right to rest during day, daily and weekly rest, annual leave, all in accordance with the Labor Law and corporate company’s general acts.
Previously mentioned rules were introduced primarily to safeguard employees’ interests, since the flexibility provided by work from home also bears the risk of non-existence of schedule of working hours or non-compliance with that schedule, as well as the risk of overtime work.
Lastly, according to the Labor Law, an employer may only assign employee to work outside the workplace on jobs that are not dangerous or harmful to the health of the employee or other individuals and do not cause harm to the environment. Practically, this means that remote work cannot be introduced for jobs that carry elevated risk, or those in industries that require special protective measures which cannot be ensured at employee’s home.
Reimbursement of costs to the employee:
One of the most commonly asked questions in relation to the work from home is the question of which expenses the employer must reimburse to the employee who works from home.
Article 118 of the Labour Law regulates the types and manner of determination of amount of the expenses that employers must reimburse to their employees. Case law treats these costs as reimbursable only if they have actually been incurred. Consequently, since the employee is working from home, he would not have to bear the for the arrival and departure from work, business trip, nor the costs for accommodation and meals on the field, and, consequently, the employer will not be obligated to reimburse them for these expenses. On the other hand, same as the employee who works in office, employee who works from home is also entitled to a meals allowance and an annual leave allowance in the amount determined by the company’s general acts or employment contract..
As noted above, the Labor Law requires contracts which envisage remote work or working from home to include additional elements regulating these working arrangements. This includes regulation of the use of the tools that are employee’s property for performance of work for employer, compensation of costs for its use, other costs to be reimbursed to the employee, as well as the manner of determination of its amount. These provisions are quite vague and subject to interpretation. Namely, an employment contract or an annex to such contract can require an employee to use his own tools or equipment for performance of work. In this case, the Labor Law regulates that compensation of costs of it use must be regulated in employment contract. This certainly leads to the obligation of employer to participate in the costs of maintenance and repair of these tools, other related costs such as internet access charges and electricity and telephone bills. In the absence of clear guidance in the Labor Law, the question is whether a lump sum can be set as reimbursement for all these costs, for reasons of efficiency, or each type of expense must be separately determined, especially since this type of specification will certainly impose a large administrative burden on both employers and employees and, consequently, increase of the administrative costs of work from home. Interestingly, the Law does not use the expression compensation for use, but the expression compensation of costs of use, implying that the employee is not entitled a special compensation for the use of his own tools for the benefit of employer itself.
Safety and health at work:
For the end of this analysis, we have left the question causing the most controversy and uncertainty in practice.
The Law on Safety and Health at Work defines a ‘workplace’ as a space intended for the performance of work for an employer (inside a building or in the open, as well as at, in, or on temporary or moveable construction sites, structures, devices, vehicles, etc.) where an employee remains or has access to during the performance of work and that is under the direct or indirect supervision of the employer. This definition served a strong point for until recently dominant opinion that since an employee’s home is not ‘under the direct or indirect supervision of the employer’ it cannot be considered as a ‘workplace’ and consequently, it does not have to be included in Risk Assessment Act nor the work environment conditions need to be examined in relation to that place. This point of view was explicitly stated in Opinion No. 011-00-00007/2009-01, issued by the Ministry of Labor and Social Affairs on 23 February 2009. Moreover, it was known that since remote work generally entails using screen-based equipment, it is subject to the requirements of the Regulation on Preventive Measures for Safe and Healthy Work with the Screen-Based Equipment. Until recently these were the only guidelines and practices in the field of safety and health at work when it comes to the work from home.
Due to the previously mentioned problems, Guidelines for Safe and Healthy Work from Home issued by the Administration for Safety and Health at Work and increase in communication between competent authorities and employers in this field represent a significant step in managing the actions in this field. Although previously mentioned activities certainly represent positive development of the practice in this field, the same have failed to fully dispel employers’ doubts in this field, they cannot be assessed without any critics, especially since employers disputed certain solutions as too strict and some of the suggested solutions as practically unfeasible. Before embarking on a detailed review of the Guidelines, we ought to note that it defines the term ‘work from home’ for the purpose of that Guidelines as using IT devices (desktop, laptop, smartphone, or tablet) that allow work to be performed away from the premises of an employer. This definition also implies that the Guidelines applies only in the aforementioned cases, and not in situations where an employee works from home without using IT (which is practically highly unlikely).
Even though the Guidelines are not legally binding (since they are not laws nor bylaws), they do carry a good deal of force as a reflection of the views and opinions of the unit of the Ministry of Labor that is officially competed for inspection in the field of safety and health at work.
The first criticism that can be attributed to the Guidelines concerns the huge change in the Ministry’s point of view. The regulator went from not considering an employee’s home to be ‘under the direct or indirect supervision of the employer’ in 2009 opinion to now viewing it as being ‘indirectly’ supervised. As such, the home is now seen as a ‘workplace’ in which the employer must implement measures to ensure safe and healthy work, pursuant to the Law on Safety and Health at Work.
Within previously mentioned, one particular question arises in public and concerns the fact whether the employer’s Risk Assessment Act needs to be supplemented to include workplaces performed at home, and, additionally, will the home of each employee have to be assessed separately for risk if used for work, or can all homes used for work be grouped into one category for the purposes of risk assessment.
Moreover, given the Constitutionally guaranteed inviolability of the home, which means no one can enter a person’s home against their consent or perform a search there without a written court order, it is unclear how employers will be able to assess risks and verify compliance with health and safety requirements if the employee denies them access. The same issue applies to inspection by the competent authorities, i.e., labor inspection.
Lastly, in the event of some injuries in the workplace, the employer is required to complete and submit a report on the injury at work in order to allow the injured employee to claim his rights. The issue here is that there is no official location code for injuries sustained whilst working from home, since homes were until recently not considered as a workplace. In this field, authorities informally suggested these reports should use the location code 9 (‘Other place of work’), since the remaining information will make it apparent that the injury occurred whilst the employee was working from home.
Previously mentioned criticisms especially gain in importance in the light of the fact that working from home is seen as a temporary preventive measure during the Covid-19 epidemic and for a large number of employers a mechanism used to facilitate operations in financially straitened circumstances.
Given the above considerations, and in view of the content of the Guidelines and the informal suggestions made by the authorities , the following conclusions can be drawn about the previously mentioned issues:
- The Guidelines issued by the Administration for Safety and Health at Work are not legally binding, but the use of the checklist contained in them is recommended for the purpose of assessing the risks and fulfillment of conditions for work from home, whereby it can be adjusted to suit the employer’s needs. Also, when performing their controls, inspections bodies can be expected to look at issues covered by the checklist;
- If the checklist reveals many negative responses, the decision to introduce work from home must be reviewed. Nevertheless, the health and safety impact of each negative answer should be assessed individually;
- Inviolability of the home means there is no insistence on the employer entering the employee’s house or flat to assess risk. Inspection bodies are also not expected to attempt to perform checks there;
- Collaboration between the employee and employer is crucial for ensuring safe and healthy work from home. Employers must provide employees with the instructions on how to use equipment and work safely and how to assess the risks involved, and, for their part, employees must follow those instructions and truthfully inform the employer of any circumstances relevant for safe performance of work;
- Previously mentioned collaboration and activities must be carefully documented in a company’s general act and/or appropriate clauses of an employment contract or annex to such contract, since due to the inviolability of the home we believe that competent authority’s inspection will largely rely on desk reviews;
- It is recommendable to supplement the Risk Assessment Act with an aggregate assessment of all risks typical for jobs where work is done from home;
- Apart from the risk of physical and mechanical injury, the inherent nature of working from home means particular attention ought to be devoted to risks related to stress, isolation, balance between private and professional life, and basically mental health of employees.
At this place, we must point out that Vukovic and partners Law Firm had recently participated in public dispute of the draft of new Law on Safety and Health at Work and that way, had an opportunity to get acquainted with the draft of the new Law on Safety and Health at Work and provides its complaints and suggestions in relation to the draft. What we emphasize as a particularly important information is that the draft of the law regulates the terms "work from home" and "remote work", as well as the obligations of the employer in the field of safety and health at work in case of work outside the employer's premises, whereby the suggested formulation and presenter’s intention visible from the explanation of the draft confirmed most of the above interpretation.
Bearing in mind all described in this text, we find its title more than adequate in current situation. Namely, working from home clearly does have its benefits, in particular as a measure for preventing virus spread, but it also involves obligations, risks, responsibilities, and adverse consequences for both employees and employers. Only time and experience will tell whether its advantages will prevail under its negative effects. The current lack of clarity of rules governing the rights and responsibilities of employers and employees related to working from home impose complying with the regulator’s opinions and guidance as the safest option. At any rate, in view of the increasingly frequent reliance on work from home, changes of legislation for the purpose of more precise regulation of this issue are to be expected in near future, whereby the firs steps were already made with the draft of new Law on Safety and Health at Work.
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