Proposals for amendments to the «home office regulations» for consultation
'Regulations on work carried out in employees' homes' have obtained new relevance during the pandemic. The Ministry of Labour and Social Affairs has now sent out a proposal for changes to the regulations for consultation. The purpose of the proposed changes is to adapt the rules to current technological and social developments.
The corona pandemic has led to home offices becoming the new everyday life for large parts of Norway's working population. Among other things, this has raised questions about the rules that apply to home offices. It has also made current the so-called «regulation of 5 July 2002 no. 715 on work performed in employees' homes» (the «regulations»).
Regarding work in one's own home, and independent from the pandemic, there has also been a social and technological development since the regulations entered into force in 2002. This has given rise to a need for a review of the regulations' provisions and is the background for that the Ministry of Labour and Social Affairs has now submitted a proposal for amendments to the regulations for consultation. The consultation deadline is 23 July 2021.
1. The changes briefly summarized
In short, the Ministry proposes the following changes 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, and
- that the Norwegian Labour Inspection Authority is given competence to supervise that the provisions of the regulations are complied with.
In the consultation paper, the Ministry has requested the input of 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.
In the consultation paper, the Ministry of Labour and Social Affairs also points out that a larger survey has been initiated of the scope of use of home offices, development features and consequences of using home offices and other telework. 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 that are dealt with in this consultation memorandum.
2. More about the proposed changes
2.1 Scope of the regulations
Section 1 of the regulations defines the scope, and states that it does not apply to "short-term or random" work performed in an employee's home. The Ministry writes in the consultation paper that they believe there is little need for special rules where homework is brief, sporadic or random, as the technological development means that many have access to e-mail on the phone and case processing system from home, which has contributed to more employees performing some work from home.
However, the Ministry is of the opinion that the term "random" in particular has given rise to different interpretations, and that the provision should therefore be clarified by replacing the term "random" with the term "sporadic". According to the Ministry, "sporadic" means homework that takes place from time to time, but not to an excessive extent or as a fixed scheme, i.e., where workers occasionally take work home and perform a few hours of work from home.
If the work at home has a certain scope and is carried out regularly, this cannot, in the Ministry's view, be called "sporadic". For example, an employee who works permanently one day a week from home will not work "sporadically", and the regulations will therefore apply. The Ministry also emphasizes that home work can be regarded as a permanent scheme, even if the scheme does not stipulate exactly when and how much work is to be done at home.
In addition, the Ministry is considering emphasizing that the regulations shall also apply to employees in conditions of employment that only involve short-term or sporadic work in their own home.
Furthermore, the Ministry points out that during the pandemic, questions have been raised as to whether the regulations apply where the home office is imposed by the employer and / or the authorities. The Ministry writes that they consider that the regulations currently apply regardless of the legal basis for homework, and that this should also apply in the future. They also comment that the regulations do not regulate the actual right to impose a home office, and that this is not proposed to be changed either.
2.2 Provision on written agreement
It appears from the current regulations section 2 that a written agreement on homework must be entered into if the regulations first apply, with more specific requirements for the content of such an agreement. In the consultation paper, the Ministry writes that they do not see a need for changes in this provision for the normal situations with an agreed home office.
In special exceptional situations, on the other hand, where the authorities have ordered or recommended a home office, the Ministry believes that the situation is different. The Ministry therefore proposes that the provision may have an exception provision, which means that the employer in exceptional situations may instead provide information to the employees after discussions with employee representatives:
«Where homework is due to orders or recommendations from the authorities, instead of a written agreement, written information may be given to the employees about what follows from the first paragraph. The employer must discuss the information with the employee representatives before it is given. "
2.3 Working environment
The current regulations stipulate that employers - as far as is practically possible - must ensure that the working conditions at the home workplace are fully justifiable. The Ministry believes that this should continue to be the overriding principle for homework.
Furthermore, the Ministry states that requirements for equipment for homework and coverage of various costs should still not be regulated in the regulations. In the Ministry's opinion, such a regulation will be intrusive in the employers' assessments and organization of the business, at the same time as it will be inflexible and difficult to adapt to different situations.
The Ministry also sees no need to make changes to the rules on the employer's obligations with regard to follow-up of the working environment.
Section 3 of the current regulations lists examples of conditions that employers must ensure with regard to the requirement for a fully safe working environment, i.e., "that the workplace, work equipment and indoor environment do not entail unfortunate physical strain". This list is not exhaustive, but only indicates physical conditions.
In view of recent experiences related to psychosocial conditions in home offices, the Ministry proposes that psychosocial conditions also be included in the text of the regulations. The Ministry emphasizes that such a change will not lead to any change in reality but believes that the change could contribute to increased awareness of this topic.
2.4 Working hours
Today, section 6 of the regulations states that the following provisions on working hours do not apply to work performed in employees' homes: the Working Environment Act section 10-4 on ordinary working hours, section 10-5 on calculating average normal working hours, section 10-6 on conditions for overtime and the length of overtime, section 10-10 on work on Sunday and section10-11 on night work.
Furthermore, the regulations lay down more detailed rules on normal working hours, what is considered overtime and night work, arrangement of working hours, the limits for total working hours at home and outside the home, etc. It also stipulates that section 6 of the regulations does not apply to employees in senior or particularly independent positions.
The Ministry does not propose any specific changes in the regulations 'rules on working hours but has requested the consultation bodies' input on whether homework should be covered by the ordinary working hours rules in the Working Environment Act, or whether special provisions are needed.
2.5 The Norwegian Labour Inspection Authority's competence
Finally, the Ministry proposes that the Norwegian Labour Inspection Authority should be given the authority to supervise the provision in the regulations, and that they should be able to issue orders that are necessary for the implementation of the provisions.