Who is responsible if you’re injured while working from home?

Working from home has become a popular choice for many companies. It allows them to forfeit their office space, which decreases their costs. However, are they opening themselves up to new costs?

An employer is responsible for the safety of an employee when they work from the office. But does the same apply if they work from home? JustMoney got all the details.

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What does the legislation say?

“Before we get to the technicalities, it would seem logical that an adult is responsible for their own health and safety, and even more so when working from the confines of their own home,” says Peter Olyott, CEO at Indwe Broker Holdings.

“This would appear common sense and, if so, the question about whether or not your employer would be liable seems pretty clear cut. But is it?” asks Olyott.

He explains that in the office environment, it’s clearly the employer who is bound by the requirements of the Occupational Health and Safety Act 85 OF 1993 (OHSACT). This act governs the health and safety of all employees, other than those in the mining sectors, ships, fishing boats, and floating cranes, which are governed by sector-specific legislation.

On the other hand, Olyott points out that the legislation dealing with the compensation of occupational injuries or diseases, the COID Act No 130 of 1993, applies to all employees irrespective of the industry.

“Section 14 of the OHSA states that every employee must take reasonable care of their own health and safety and of other persons who may be affected by their acts or omissions. So clearly there is an onus on the employee to not act recklessly with regards to health and safety even in the home office environment,” Says Olyott.

So, does the legislation apply to working from home? Olyott says that according to Section 1 of OHSACT, the term “workplace” is defined to mean “any premises or place where a person performs work in the course of his (or her) employment”. The term “premises” further includes “any building, vehicle, vessel, train, or aircraft”.

“It’s very evident that the definition is absent of qualifying criteria such as owned, rented, or used. The definition doesn’t state that company premises must be owned by the employer,” says Olyott.

Additionally, he points out that the term “work” is defined as “work as an employee or as a self-employed person and, for such purpose, an employee is deemed to be at work during the time that he is in the course of his employment”.

“Accordingly, employees who perform work, as defined, at home, will in most instances be acting in the course and scope of their employment and, therefore, their home or residence constitutes a workplace as defined in the OHSA,” says Olyott.

What kind of injuries can you get at home?

Olyatt points out that hazards presented or created by working from home will to some extent depend on the nature of the work being carried out. Some common home working hazards could include:

• Manual handling and upper limb disorders
• Lone working: no adult is around should an injury occur
• Driving for work: in the course and scope of employment
• Use of work equipment: picking up computers and/or printers
• Hazardous substances and materials: cleaning materials or inks
• Slips, trips, and falls: can be caused by long extension cords
• Stress: feeling pressured to complete work assignments with no visible support
• Electrical equipment short circuiting or improperly wired electrical connections

Responsibilities of the employer

Olyott says that the duties of an employer are not absolute, and are qualified by the term “reasonably practicable”. This term includes four components:

1. The severity and scope of the risk concerned,
2. The general state of readily-available knowledge concerning the operation of the equipment within a given state of hazard or risk,
3. The reasonable availability of suitable means to remove or mitigate that hazard or risk, and
4. The cost of removing or mitigating the hazard relative to the benefits gained from it.

“Given all of the above, there would be a duty on the employer to consider undertaking a suitable risk and hazard assessment, implementing appropriate risk control measures to manage the risk, backed up by appropriate training and communication to support the risk management approach adopted by the employer,” says Olyott.

“Given the obvious cost and relatively low exposure of employees working from home with regards to their use of computer and related equipment, it would not be required of an employer to conduct a risk assessment at each employee’s home. But the employer should provide a guide identifying the typical risks which could be expected to be found at a remote working office,” he explains.

This being said, Olyott believes that the employee remains ultimately responsible for their own health and safety. In a Covid19 world this takes on additional significance in that the employee should ensure that they are regularly sanitizing their workspace and equipment and that they are practicing social distancing and wearing masks when dealing with people who are outside the home environment. 

READ MORE: New to working from home? Set up your home office like this

On the other hand, he says that employers expecting their staff to work from home should provide for the necessary personal protection equipment to ensure they can keep their working environment safe and secure.

“It’s clear that for any injury to qualify as an injury in the course and scope of employment, the exact circumstances of any such accident will come under scrutiny. It’s important to ensure there’s sufficient evidence to illustrate that the injury was sustained in the course and scope of employment,” says Olyott.

He insists that all employers should be issuing communication to their remote workforce highlighting the typical potentially hazardous areas and circumstances of working remotely.

Caron Whitfield, head of marketing and distribution at Apio Group, agrees that employees are covered for work-related injuries that occur outside the office or other workplace.

“However, proving that your occupation caused an injury becomes more complicated when working remotely, especially when the injury could have theoretically occurred at home on any given day when you weren’t working,” says Whitfield. 

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