27 Oct 2020

Working from home leaves ACC law unfit for purpose - lawyer

5:05 pm on 27 October 2020

Employers could find themselves facing prosecution or hiked ACC levies as more of their workers decide to continue working from home, a retired lawyer and ACC expert says.

man working from home

Photo: Claudio Schwarz / Unsplash

Don Rennie, who worked and advised in the personal injury sector for decades and convened the Law Society ACC committee, said with the influx of people now working from home, the law governing ACC and the Health and Safety at Work Act was not fit for purpose because employers could no longer control the working environment.

"There's no legal right to go to an employee's private home to ascertain whether it's a safe place to work... and if the employee doesn't own the house he lives in, the employer can't go to the landlord and say 'you've got to change it'."

Despite there being no right for employers to enter or manage a home workplace, Rennie said they remained legally liable should something go wrong.

"Under the law, the employer, or the PCBU [person conducting a business or undertaking], is responsible for their workers, wherever they are working and the PCBU must ensure the work area at home complies at least with the equivalent health and safety standards of the normal place of work provided by the PCBU where that employee usually works," he said.

"Now, working at home at the kitchen table with pets underfoot or in the spare bedroom upstairs where access is by a steep stairway with inadequate handrails may not qualify as a safe workplace... and if the workplace doesn't comply the PCBU may face prosecution and significant fines have been imposed by the courts."

He said an accident at home would be a work-related personal injury, which includes injuries suffered during work breaks.

"When you've got people working at home it's going to be almost impossible to determine whether they're having a work injury or not."

He said the employer could also see an increase in levies for such injuries.

An ACC spokesperson said the injury would have to meet a relatively high threshold to have an impact on levies - i.e above the vast majority of claims ACC receives.

"Any injuries to employees doing work-related activities while working from home will only impact an employers' experience rating if they lead to time off work requiring weekly compensation, medical costs over $500, or accidental death. Claims relating to working from home from 1 April 2020 won't be reflected in the experience rating of employers until the 2022/23 levy year.

"If an employer feels an injury to an employee may not be work-related, or that there's something else on their claims history that's not right, they can contact ACC's Work Injury Inquiry team," the spokesperson said.

Marie Wisker, a partner at the law firm Chapman Tripp specialising in employment law, said while the law did put an obligation on employers to ensure a safe working environment, the laws were suitable so long as all parties were reasonable.

"If we bring it back to first principles we have to remember that the employer's legal duty is to take all reasonably practicable steps.

"What is reasonably practicable for a home working environment as opposed to an office working environment will be different."

She said employers were also responsible for ensuring not just physical safety, but the wellbeing of remote-working staff.

"We're human beings, social creatures, we do need that social connection from time to time.

"What I would be suggesting for employers is to have some form of checklist or some form of agreed working arrangement with their employes... so that doesn't necessarily mean a full on check... going in and inspecting an employees stairs and things like that, but I think it does involve an active discussion about their environment so that you can try and ensure that your employee is working safely."