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COVID-19: NSW Public Health Restrictions: Do Employees have the Right to Work from Home?
Rohan Burn, Senior Associate
COVID-19 related restrictions are being lifted and people in NSW no longer need a “reasonable excuse” to leave their places of residence, but what kind of justification do employers need to direct employees to leave their homes and return to the workplace?
Pursuant to the NSW Public Health Order dated 14 May 2020, “an employer must allow an employee to work at the person’s place of residence where it is reasonably practicable to do so”. The circumstances where a person “must” work from home appear to be narrowing over time because the NSW Public Health Order dated 30 March 2020 provided that it was only a reasonable excuse to leave home for the purposes of travelling to work where a person “cannot work” from home (that is, the term “cannot” is a stricter qualification than “reasonably practicable”).
While employers ought to be familiar with the concept of “reasonably practicable” from the context of their workplace health and safety obligations, it is understandable that many employers will not be confident in determining whether it is, or is not, “reasonably practicable” for someone to be working from home. Employers may have felt more comfortable in their ability to move towards returning employees back to work in the days preceding the new and enforceable NSW Public Health Orders, when the Federal Government announced that step one of its plan to achieve a COVID-safe economy and society involved “working from home, if it works for you, and your employer”.
In these somewhat uncertain circumstances, we encourage organisations to consider their current operations and, particularly for organisations experiencing significant declines in productivity, to build a case about whether working from home arrangements remain a viable option on an ongoing basis, or whether the organisation needs its people coming back to the workplace. In conducting this assessment, employers may be guided by the consultative and reasoned approach taken to determine whether there are “reasonable business grounds” for rejecting or accommodating an eligible employee’s request for flexible working arrangements under the Fair Work Act 2009 (Cth).
Provided an employer is taking all reasonably practicable measures towards ensuring that their workplaces are COVID-safe, if it is the employer’s genuine view that it does not work to have all or part of their employees working from home, then they should, acting in the best interests of their organisation, require employees to return to their usual place of work.
PCS is able to assist employers in developing a return to work plan, implementing the plan in a sensitive and appropriate manner, and managing any issues arising on an exceptions basis.
Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 2) 2020 (NSW)
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW)
Other relevant resources
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