Home office - topics and issues when introducing a more permanent scheme for work at home
The use of home office has made its wide entry into Norwegian workplaces in 2020 as a result of the Covid-19 pandemic. Home office 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. On this basis, they are considering introducing more permanent arrangements for home office, regardless of the corona pandemic that has characterised 2020.
Increased use of home office is one of the changes we believe will continue after the corona pandemic is over. Home office can have benefits for both employers and employees, primarily in the form of lower costs for the employer and more flexibility and efficient use of time for the employee.
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.
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. The Ministry of Labour and Social Affairs has recently published a note in which they largely suggest that the regulations will apply. 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.
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 (this will typically coincide with the working hours for homework)
- 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. With respect to the termination of the individual agreement related to home office, we recommend to specify that the agreement may not be regarded as a part of the employment contract, and thus, that a termination of the home office agreement does not constitute a termination of the employment agreement according to the Working Environment Act.
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 ergonomics and the indoor environment. The written agreement to be entered into should regulate who is to cover the costs of amending the home office solution.
6.3 Mental working environment
Experience in recent months 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. The provisions on working hours do not apply to employees in senior or particularly independent positions. 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. Working hours shall be arranged so that it does not exceed 48 hours a week, including overtime, during a 4-month period.
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.
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.
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, 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.