Employers must carefully navigate the legal maze of remote working during the Covid pandemic

 

Pareen Rogers is an executive and Naa’ilah Abader a senior associate in the Employment Department of law firm ENSafrica.

While remote working has been the usual practice for a number of employers worldwide, Covid-19 and the resultant lockdowns have forced other employers to adapt quickly and to embrace the concept of remote working in order for their business to operate and remain viable.

Concepts such as the “office” and “normal working hours” have had to evolve and take on new meanings in order for businesses to continue to remain operational during the pandemic. Although most employees have indicated they have saved time and costs by no longer having to travel to and from work, the lines between home and work have become blurred and our homes have now become offices, and in some cases schools, too.

Many South African businesses were required to, almost overnight, have the majority of their employees work from home. Remote working is not specifically regulated in terms of any legislation in South Africa. However, employers must bear in mind that it is not as simple as merely continuing to deal with remote working in the same ad hoc manner as necessitated by Covid-19. There are key issues that must be taken into account and carefully considered.

We highlight some of these issues below:

1. Consider whether current contracts of employment confer a contractual entitlement or obligation to work from the office or from home (in which case contracts of employment will need to be amended with employees’ consent) and whether contracts of employment are flexible enough to allow for both options at the employer’s discretion;


2. It is important to identify the work-from-home model or models that the business will use and the parameters of each. For example: which job categories are best suited for this type of arrangement and which are not? Will employees be required or entitled to work from home or the office exclusively or will a hybrid model be adopted in terms of which they will work from both? There must be a fair, rational and objective mechanism for selecting employees to participate in any given model to avoid the risk of unfair discrimination claims or unfair labour practice disputes;


3. Data protection, confidentiality and IT security safeguards are important in the context of working-from-home arrangements. This entails inter alia assessing the risks involved in the employee accessing systems and data remotely, and applying reasonable IT security measures requiring employees to put security measures in place to protect an employer’s confidential information and ensuring compliance with the Protection of Personal Information Act 4, 2013 (Popia). Training will be vital to this aspect. Situations such as employees working from coffee shops and other locations and accessing unsecured networks and thereby compromising an employer’s IT security are practical issues that employers need to be aware of. Another situation that may arise is that spouses or family members (who may work for competitors of the employee’s employer) may gain access to confidential information that the employee has left in open sight. These and other practical scenarios may be easily avoided with training and employer guidance;


4. The Occupational Health and Safety Act 85, 1993 places a general obligation on an employer to, as far as reasonably practicable, provide and maintain a working environment that is safe and without risk to the health of its employees. Employees have a corresponding duty to take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions. A “workplace” is widely defined in the act to mean any premises or place where a person performs work in the course of their employment. The obligations imposed in terms of the act would therefore extend to remote working and, in particular, home working arrangements. Approval of locations, risk assessments and inspections (virtually or otherwise) will become increasingly important in this regard;


5. Issues relating to the provision of equipment and allowances and reimbursement for reasonable expenses when working remotely are currently not regulated. Employers should consider when and to what extent provision will be made for this. It has become increasingly common for employers to furnish employees with an upfront and one-off allowance that they may use in establishing their work-from-home offices;


6. In a work-from-home arrangement, employees would presumably be subject to the same performance requirements that would ordinarily apply in an office-based arrangement. However, from a practical perspective, additional measures might have to be put in place to ensure that performance is effectively managed when employees are working remotely, for example:
   a) Discussions regarding performance expectations at the commencement of a work-from-home arrangement;
   b) Weekly or monthly “catch-up” calls and sessions;
   c) More frequent performance appraisals and feedback; and
   d) A number of employers have also changed to measuring performance based on outcomes and deliverables as opposed to time spent by employees at “the office”. Disciplining employees who work remotely may also prove to be challenging and employers will need to rely heavily on their IT systems and records depending on the nature of the misconduct.


7. One of the pitfalls of remote working is that it limits interaction with other employees and limits a sense of being part of an organisation. Not only has this had an impact on the mental health and wellbeing of employees, but it also has the potential to affect productivity. Employers are having to become creative in encouraging collaboration and communication between team members, which includes “catch-up” calls and meetings and other virtual activities; and


8. Virtual meeting fatigue and working longer hours are also challenges that arise from working remotely. Employee wellness programmes will play a significant role in helping employees who are suffering from burnout and/or fatigue. Employers will need to be alive to issues relating to mental and emotional wellbeing.

‘Semigration’ and global mobility

A large number of employees have moved to other provinces/cities/towns within South Africa, primarily because they are now able to work remotely. In addition, employees now have more freedom to move their virtual offices to international locations based on personal preferences and family commitments and responsibilities. Employers should carefully consider these arrangements and ensure they are approved on an objective, fair and rational basis. The issues raised above would apply to these arrangements, too.

Regarding global mobility, employers will need to consider whether the employment laws of receiving jurisdictions would have to be complied with in conjunction with the contractual arrangements that would be legally permissible and best suited to the employer’s needs. For example: dual employment contracts, secondments, employing staff directly through existing entities in the applicable jurisdictions or using the services of professional employer organisations or employers of record.

In addition, employers would need to ensure compliance with immigration laws, corporate and corporate tax compliance, as well as income tax, social security and remuneration and exchange control requirements.

“Semigration” and global mobility may also be useful for employers to consider as they have the advantage of broadening the talent pool and skills available to them.

Guidance for employers

Irrespective of the types of work-from-home arrangement/s employers seek to adopt and put in place, it is clear that decisions will need to be made having regard to all the necessary and relevant legal and practical issues that arise.

It would be best practice for employers to document how they will regulate work-from-home arrangements in the form of policies and/or guidelines to ensure certainty and consistency in an ever-changing world. Retraining of managers to ensure they are able to effectively manage employees in work-from-home arrangements should also be considered.

Employers will need to be agile and flexible to ensure that they navigate working remotely fairly, while ensuring their businesses remain viable. DM