Even though there are no signs of when the spread of COVID-19 can be contained, many businesses, whose employees are required to work remotely on the order of the government, still do not have a proper remote working or “work from home” (WFH) policy due to the belief that they could one day return to status quo.  While the effects of COVID-19 on businesses may have been unprecedented, there is no reason to think that such effects would not recur in the future, whether due to other infectious diseases or other supervening events.

What a remote working policy should look like would depend on the specific requirements and circumstances of a company. As there is no “one size fits all” policy, companies must therefore undertake an assessment to identify any gaps that may have arisen as a result of employees working remotely, in order to craft a policy that addresses such gaps.

However, as a general guide and without being exhaustive, the policy should address the following matters:

Safety and health of employees

The Occupational Safety and Health Act 1994 (“OSHA”) prescribes, among others, a general obligation on employers to ensure the safety of their workers. This is provided under section 15 which reads:

It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare to work of all his employees.

Given that an employee’s home is where the employer’s work is carried out, it is possible for an employee’s home to be considered an extension of the company’s workplace.  OSHA does not contain an exhaustive list of what employers are required to do.

As such, in order to comply with OSHA’s requirement of ensuring the safety, health and welfare of its employees, companies should carry out a risk assessment to identify the presence of any hazards and to recommend remedial measures.

Here are some examples of health and safety issues that should be considered when drafting a WFH policy:

  • Whether the work can be done safely at home
  • The tools and equipment required by the employee to work from home, safely
  • Hours of work (to confine employer’s liability, if any, to accidents that occur during working hours and in the course of employment)
  • Procedure for reporting injuries
  • Obligations and responsibilities of an employee when working from home

Managing performance / productivity

Some employers are concerned about the productivity of employees when they work from home. Examples of what employers should address in the policy include:

  • Set out a way to track performance and accountability
  • Communication channel to address issues transparently
  • Clear expectations of an employee who is WFH (eg: whether they need to “login” and be present at certain times, whether flexible hours apply, etc) 

Data security and confidentiality

Not all employees live alone. An employee may be living in a shared space where there is a risk of confidential information being overheard or accessed.  Further, the usual securities that are in place at the company’s workplace may not be present in the employee’s home (e.g. VPN, secured network, encryption etc.).  Companies should therefore assess the extent and nature of such risks and address them in the WFH policy:

  • Guideline relating to the requirement to install proper software on the computer, including anti-virus protection, secured virtual private networks or firewalls against cyber threats;
  • Guideline and reminders relating to employees’ obligation to protect company’s confidential information (e.g. measures that should be taken, such as refraining from leaving computer unattended, etc.);
  • Training for employees on cyber security and data protection

As employees may not be familiar with the concept of remote working, a written policy will help set expectations and minimize the risk of misunderstandings. A misalignment of expectations can lead to an employment dispute, so all parties benefit from being transparent about their respective obligations from the get go.

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This article was written by Donovan Cheah (Partner) and Adryenne Lim (Senior Legal Executive). Donovan has been named as a recommended lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work. 

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

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