In an attempt to flatten the Covid-19 pandemic curve, governments
have been forced to take severe measures; ranging from a total lockdown of the
country, to curfews, stay at home orders and, the one I personally dislike the
most, social distancing because I like to hug people.
Part of coping and ensuring “business as usual”, many companies
have, as far as practically possible, retorted to allowing employees to work
from home (WFH). WFH became commonplace in the 1970’s. However, it is only now that advances in technology
such as the internet and devices like smartphones and laptops, have enabled the
culture of WFH.
In Sub Saharan Africa however, WFH practices have not previously
been implemented. The move to do so in the current environment is bringing
about a multitude of challenges, ranging from cybercrime, tax implications and
employer liability to the social and mental wellbeing of employees.
Europe has been dealing with this “new” phenomena for years. In the
Netherlands for instance, the majority of Dutch employees were already working
from home since a long time, and as a result of government measures concerning
the coronavirus even more people started to work from home. In principle, the
existing laws and regulations on WFH also apply during the COVID-19 crisis.
According to Dutch law, an employer must ensure an ergonomic workplace, either
at the office, or if the employee works from home, the home office. The
question is whether it is feasible at the moment to have employees’ home
offices completely ergonomically furnished. The law provides that the
obligation to provide an ergonomically designed workplace does not apply if the
employer cannot reasonably be expected to do so.
Employers are obliged to ensure that the social wellness and
workload on employees are not too high. Employees who are WFH could unknowingly
be exposed to an excessive workload. An example of this would be a single
parent who is required to still fulfill a day “at the office” whilst dealing
with childcare and possibly homeschooling too. It is therefore crucial for
employers to maintain regular contact with employees to monitor how they are
coping and adapting to the situation and to ascertain where additional support
may be needed.
Another obligation bestowed upon employers is that they must ensure
that their employees work safely. When an employee works from home, it is not
as easy for the employer to check whether an employee is taking sufficient
breaks or sitting at a desk that promotes good posture. Employers should
therefore provide their employees with proper instructions on these matters.
For example, with a little help from a company’s IT department, the use of a
computer can be curtailed. In that way the employee can only work on the
computer during certain predefined times or for a certain amount of time.
In Sub Saharan Africa, most countries don’t have any specific laws
that regulate WFH. One has to revert back to, amongst other laws, the
countries’ employment acts. That also means that the applicable insurances
probably have to be updated to cater for
employees working from home. Such insurance coverages include the workmen
compensation, occupational injuries and illness or worker’s compensation
policies. One of the questions that will frequently arise is “Will these WFH
workers be covered by the provisions of the current insurance coverages?”. In
general, a standard Home Content insurance policy would not provide sufficient
cover for WFH. Some policies have an exclusion for ‘business or professional
purposes’ such as cell phones and computers. The opposite is true as well, not
all business insurances will sufficiently cover WFH and the associated
liabilities. It's important to check your policy documents and find out what
you are covered for.
Robert Kooijman | General Counsel - Legal
& Compliance | Minet Group
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