Home office - themes and issues when introducing homework as a permanent scheme
The use of home office has made its wide entry into Norwegian workplaces in 2020 as a result of the Covid-19 pandemic. Home offices have to a large extent been forced through orders and / or recommendations from the Norwegian authorities. However, many companies have had a positive experience with home office. The employees also appreciate the flexibility that the home office provides. We experience that more companies now, especially after the reopening, are considering or introducing more permanent schemes for home offices. We believe that home offices will be a central part of the new, hybrid working life.
Although home offices have clear benefits for many, it also has negative aspects and practical and legal challenges that employers should consider carefully before an extensive use of home office is introduced on a more permanent basis. In this article, we will highlight various topics and issues that the employer should assess and consider when introducing a more permanent scheme for work at home.
We have considerable experience in assisting companies in setting up home office arrangements. Feel free to contact Trond Erik Solheim or Lise Gran for an informal chat and / or non-binding offer.
2 Overview of the regulations
The starting point is that both the Working Environment Act, the employment contract and any collective agreements also apply to work in a home office. However, a number of special regulations have been issued with regard to work from home office in the "regulations on work performed in the employee’s homes" (FOR-2002-07-05-715).
The regulations do not apply to "short-term and incidental" work performed from a home office. The employer must consider specifically whether the regulations apply to temporary home office solutions during the corona pandemic. In November 2020 The Ministry of Labour and Social Affairs published a note in which they largely suggest that the regulations will apply (Norwegian only, see here). However, it is clear that the regulations will apply to a more permanent scheme for home office, where the employee's ordinary work is regularly performed from home offices, regardless of how small a part of the work actually takes place in the home and regardless of whether and to what extent the employees make use of the possibilities for a home office.
The central point in the regulations is that the employer's responsibility for the individual employee's health, environment and safety still apply when the employees working remotely from their homes. Among other things, it follows from the regulations that the employer shall, as far as practicable, ensure that the working environment in the home office is fully sound and that the employer's internal control system (i.e., the employer's systematic work with health, environment and safety) shall include work in the home office. Furthermore, the work of the safety representative and the working environment committee shall also include teleworkers at the home office as far as is practically possible.
However, the responsibility must be adapted in accordance with the fact that the workplace is in the employee's own home. This means, among other things, that the employer (or safety representative) does not have access to the remote workplace without the consent of the individual employee, and the follow-up of the working environment will to a large extent require active participation and information from the employee.
3 Agreement with the individual employee
In the case of home work covered by the regulations, the employer must, in accordance with section 2 of the regulations, ensure that a written agreement regarding the home work is entered into in addition to the written employment agreement. The agreement shall as a minimum include:
- The scope of and working hours for homework
- When the employee is to be available to the employer
- Expected duration if the agreement is temporary
- Provisions on the right to change or terminate the agreement on homework, deadlines for such termination, etc.
- Provisions on probation for the homework scheme
- Provisions on property rights, operation and maintenance of equipment
- Provisions on case processing, duty of confidentiality and storage of documents
4 Home office policy
We recommend that employers who wish to facilitate a more permanent use of home office draw up a policy for employees' use of home office, so that both employer and employee have predictability around such a scheme. The topics to be regulated in an individual agreement can then be lifted into a policy, after which the individual agreement can refer to the company's policy for home office.
In the sections below, we have specified a number of topics that should be considered regulated in addition to the mandatory points according to section 2 of the regulations. However, please note that the topics are not exhaustive.
5 Employer's right to manage
The employer should consider its need to implement a scheme for the use of home office, and what the scheme eventually should look like. Our experience is that it is important to communicate clearly that the scheme is based, among other things, on a need for flexibility.
Possible themes to assess can be:
- Should the scheme only apply to certain categories of employees?
- Does the company need employees to show up at the permanent workplace/offices, meaning that the employees may only work from home office part time?
- Should employees at home office have a duty to show up at the company’s offices with a defined prior notice, for example 24 hours?
- Should there be any restrictions on where an employee can work from at home office?
In general, we recommend including a clause in the agreement which clarifies that the employer is entitled to manage the home office scheme, as appropriate. This means, among other things, that the scheme can both be changed and removed by the employer.
It should also be stated that the employers right to manage applies to both the scheme as such and the individual agreements on home offices with the individual employee. It is also important that it is clear from the home office agreement that it is not part of the employment contract. This is because it can limit the right to manage.
6 Working environment
6.1 The employers responsibilities and case handling
As mentioned, the employer is responsible for ensuring that the employee's safety, health and welfare also is taken care of when employees are working from their home office. We recommend that the employer discusses how the home office can be carried out in an appropriate and responsible manner with the safety representative, and possibly with the employee representatives and the Working Environment Committee (AMU). In the systematic working environment work / internal control, it should be stated that the employer has employees who work from home.
6.2 Physical working environment
The measures that the employer has carried out in the workplace to ensure a proper and suitable workplace cannot always be transferred to a home office scheme. The employer must ensure that employees have access to what is necessary to have a fully satisfactory physical working environment at home office. This includes that the employer must ensure that the employee has the necessary equipment to perform the job in a proper and secure manner.
In connection with the ongoing pandemic, several employees have used solutions that include both kitchen tables and dining chairs. With the transition to a more permanent home office arrangement, it is important to consider whether such a workplace is fully satisfactory in relation to the individual employee, for example with regard to the workroom, ergonomics and the indoor environment. Who is to cover the costs of the equipment for the home office solution is something that the employer must decide on and must be regulated in the written agreement to be entered into.
6.3 Mental working environment
Experience from the period with imposed home offices during the corona pandemic shows that employees react very differently to working from home office. Some employees are coping very well with the home office scheme and have little or no mental wear and tear of the situation - on the contrary, some may experience an improved mental situation. However, there are a good number of employees who experience various forms of mental wear and tear at home offices. For some, this may lead to more serious health problems. Being able to meet colleagues in a workplace will be important for many in terms of well-being, learning, unity and information flow.
It is important that the employer follows up on his employees individually in order to intercept the mental state of the individual employee.
In addition to individual follow-up, employers have a duty to work systematically to reduce the risk of such mental wear and tear. Our experience is that many employers experience a good effect by providing guidance on preventive work that the individual employees can do themselves and introduce routines that facilitate such individual prevention. At the same time as the employer should be clear with respect to the expectations for work effort and work performance, we recommend that the employer also points out the importance of breaks or small breathers during the day, and preferably an airing if possible. The employer should also facilitate professional and social meeting points, both digitally and physically for those who need it.
6.4 Working hours
Section 6 of the regulations deals with the working hours for homework. If the employee works partly from the home office and partly from the employer's premises, the employer must comply with both the working time provisions pursuant to the regulations for home work and the working time provisions pursuant to the Working Environment Act for work at the workplace.
The regulation makes a number of exceptions from the working time provisions in the Working Environment Act, for example the rules on average calculation of the work hours in the Working Environment Act § 10-5 do not apply. It follows from the regulation section 6 that the normal working hours are 40 hours a week. Mandatory work beyond normal working hours is overtime. The total working hours in the home office and the physical workplace shall be arranged so that during a four-month period it does not exceed an average of 48 hours per week, including overtime.
This means that the regulations give the employer and employee greater flexibility in determining the fixation of working hours with a permanent home office solution, compared to the Working Environment Act. At the same time, the framework for the average calculation of the working hours is more limited, as no further average calculation of the working hours can be agreed than that which follows from the regulations.
Employees in senior or particularly independent positions are exempt from the regulations' provisions on working hours.
Prior to a potential agreement on a home office scheme, the employer must assess when the employer wants the employee to perform the work and at what times the employee must be available to the employer. As mentioned above, provisions on this topic shall be included in the written agreement. Such provisions will also reduce the risk of doubt and disagreement between the parties at a later date.
7 Duty of confidentiality
The individual employee must take care of the duty of confidentiality at home in the same way as at the workplace. This means that the employee must process and store documents properly so that third parties, including family members, do not have access to the documents. When the working day is over, any documents should be cleared away.
The employee's PC and associated programs should also be blocked for use by other or family members with a strong password that is regularly updated. The PC should also have systems that cause it to go into sleep mode quickly if an employee leaves the workplace, and it should be turned off at the end of the working day.
The employer should have clear guidelines regarding storage, including archiving and shredding of work-related documents also at home office. Furthermore, the employer should have systems for automatically updating the password and hibernation mode of the computer. The employer should also have guidelines regarding telephone calls and digital meetings. Outsiders should not be able to overhear such meetings.
8 Privacy and protection of personal data
In the same way as for confidential information, it is important that the company's routines for processing personal data are also maintained at the home office. Documents, which deal with personal or sensitive information, shall not be kept available to unauthorized persons. Moreover, such documents must not be thrown away untreated for recycling. They should, as applies to confidential information in general, either be stored in a safe place or shredded. It is important to regulate such issues in an agreement or in internal guidelines.
9 Data security
9.1 In general
Data security is an increasingly important focus area for most businesses. The methods, services and tools that companies use to ensure the production, storage and transmission of data in the workplace are often not adapted to home office solutions. The employer should have clear guidelines that are also adapted to the home office, and a solid internal control and deviation system to detect and deal with any data breaches.
There are several solutions and measures that can make it safer for businesses to utilize home offices. The key is to secure digital data and ensure that employees can securely connect from home.
9.2 Home network
The employer should create routines for what measures employees must implement to ensure that they work from a secure network. The Data Inspectorate proposes several security measures that can be used as a starting point.
9.3 Public network
There is a great risk associated with logging on to publicly available networks. These will typically be networks in restaurants, hotels and elsewhere in the public space, where many will have access to the network's password. Employers should consider instructing employees not to log on to such networks on electronic equipment that are also used for work purposes.
However, in some situations it may be necessary to go online somehere where the employee does not have access to a home network. An alternative in these situations may be that the employee shares the network from his own mobile phone to the computer. This is considered more secure than logging on to public networks. If it is probable that such a need will arise, the employer should consider offering employees a mobile subscription that contains sufficient mobile data for such use.
9.4 Communication channels
The employer should also consider whether it is necessary to prohibit the use of private communication systems in a work context, such as Whatsapp or Facebook. This to ensure that all work-related communication is available on the work network.
In principle, The Occupational Injuries Insurance Act also applies to work from a home office. However, it is a prerequisite that the injury has occurred while the employee was working at the workplace during working hours. This can raise difficult questions of evidence in connection with homework. Home office is a flexible solution that allows the employee to combine short tasks at home with being at work. For example, does the insurance cover injuries that are caused during working hours, but where the employee has fallen down the stairs after having started the washing machine?
To avoid such cases of doubt, the employer should consider taking out supplementary insurance for the employees, for example a leisure accident insurance, so that the employee is covered even if it is doubtful whether the injury occurred while the employee was "at work". In that case, the employer should examine and ensure that the supplementary insurance provides as good coverage in the event of injury as the occupational injury insurance.
11 Home office abroad
Home work from abroad, which lasts longer than very short stays, raises a number of additional questions related to, for example, taxes, social security rights and insurance. Employers should therefore think carefully about and possibly carry out further examinations before allowing an employee to work at home office from abroad.
12 Proposals for changes in the regulations on work in employees' homes
In the spring of 2021, the Ministry of Labour and Social Affairs sent proposals for changes to the regulations on work in employees' homes for consultation. The Ministry proposed the following amendments to the regulations:
- A clarification of the scope of the regulations,
- An exception from the requirement for a written agreement where homework is due to orders or recommendations from the authorities, i.e. that the employer in such cases can instead provide information after discussions with employee representatives,
- A clarification that the provision on the working environment in the regulations also covers psychosocial conditions,
- That the Norwegian Labour Inspection Authority is given competence to supervise that the provisions of the regulations are complied with (i.e. that there is a written agreement and requirements for the working environment).
In the consultation memorandum, the Ministry requested input from the consultation bodies on whether homework should be covered by the ordinary rules on working hours in the Working Environment Act, or whether there is a need for special provisions.
The Ministry also pointed out that a major survey has been initiated of the extent of the use of home offices, development features and consequences of using home offices and other remote work. The final report will be available in mid-March 2022. This mapping work will be able to highlight conditions that may indicate a need for further changes or other changes or clarifications in the regulations than the changes already discussed in the consultation round in the spring of 2021.
The consultation deadline expired on 23 July 2021, and we assume that there will be a proposal for changes by the summer of 2022. You can find more information about the proposals here.
It is important that the employer ensures that the statutory requirements at the home office are met, ref. the Regulations on work in the employee's home, and otherwise considers how a possible scheme for home offices can best be solved for the individual company.
The employer should also, in consultation with any employee representatives and safety representatives/occupational environment committee, evaluate the scheme along the way, so that necessary adjustments can be made with regard to the employees' working environment, as well as proper operation of the company's business.
Please feel free to contact us at Homble Olsby Advokatfirma if your company needs help in preparing agreements and guidelines for home office or has other questions in this connection.