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27 January 2021
Agreements with individual employees
Employers' right to manage
Duty of confidentiality
Privacy and personal data protection
Remote working abroad
Remote working has become increasingly common as a result of the COVID-19 pandemic and has to a large extent been made mandatory through orders and recommendations from the Norwegian authorities. However, many companies have had a positive experience with remote working and are considering introducing more permanent arrangements beyond the COVID-19 pandemic.
Remote working offers benefits to both employers and employees, primarily in the form of lower costs for employers and more flexibility and efficient use of time for employees.
Although remote working has clear benefits for many, it also has negative aspects and practical and legal challenges that employers should consider carefully before they introduce remote working on a more permanent basis. This article highlights various topics and issues that employers should consider when introducing a more permanent scheme for working from home.
The Working Environment Act, employment contracts and any collective agreements apply to work conducted from a home office. However, a number of special regulations have been issued with regard to working from home in the regulations on work performed in employees' homes (FOR-2002-07-05-715).
The regulations do not apply to short-term and incidental work performed from a home office. Employers must consider specifically whether the regulations apply to temporary home-office situations during the COVID-19 pandemic. The Ministry of Labour and Social Affairs published a note in which it largely suggested that the regulations will apply. However, it is clear that the regulations will apply to a more permanent scheme for remote working, where employees' ordinary work is regularly performed from home offices, regardless of how much work actually takes place in their homes.
The central point in the regulations is that employers' responsibility for individual employees' health, safety and environment still applies when employees are working from home. Among other things, it follows from the regulations that employers must, as far as is practicable, ensure that employees' home working environment is fully sound and that their internal control system (ie, employers' systematic work regarding health, safety and environment) will include work conducted from a home office. Further, the work of the safety representative and the working environment committee must also include teleworkers at home offices as far as is practically possible.
However, the responsibility must be adapted in accordance with the fact that the workplace is in an employee's own home. This means, among other things, that employers (or safety representatives) have no access to an employee's remote workplace without the employee's consent and an examination of an employee's working environment will to a large extent require active participation by and information from the employee.
In the case of remote working covered by the regulations, employers must, in accordance with Section 2 of the regulations, ensure that a written agreement regarding remote working is entered into in addition to a written employment agreement. As a minimum, the agreement must set out:
Employers that wish to facilitate a more permanent use of remote working should implement a policy for employees' use of a home office, so that both employers and employees have predictability around such a scheme. The topics to be regulated in an individual agreement can be transferred into a policy, after which the individual agreement can refer to the company's remote working policy.
The sections below highlight some of the topics that should be considered regulated in addition to the mandatory points according to Section 2 of the regulations.
Employers should consider their need to implement a scheme for the use of home offices and what this should look like. It is important to communicate clearly that the scheme is based on, among other things, a need for flexibility.
Possible considerations include the following:
Employers should include a clause in the agreement which clarifies that they are entitled to manage the home-office scheme as appropriate. This means, among other things, that the scheme can be both changed and cancelled by employers.
Employers' right to manage applies to both the scheme as such and the individual agreements on home offices with individual employees. With respect to the termination of individual agreements relating to remote working, employers should specify that the agreement may not be regarded as a part of an employment contract and, thus, the termination of a home-office agreement does not constitute the termination of an employment agreement according to the Working Environment Act.
Employers' responsibilities and case handling
As mentioned, employers are responsible for managing employees' health, safety and welfare when they are working from home. Employers should discuss how remote work can be carried out in an appropriate and responsible manner with the safety representative and possibly with the employee representatives and the Working Environment Committee. In the systematic working environment work and internal control system, employers should state that they have employees who are working from home.
Physical working environment
The measures that employers have taken to ensure a proper and suitable workplace cannot always be transferred to a home-office scheme. Employers must ensure that employees have access to anything necessary to establish a satisfactory physical working environment at their home office (eg, ensuring that employees have the necessary equipment to perform their job in a proper and secure manner).
Throughout the pandemic, some employees have worked from their kitchen tables and dining chairs. With the transition to a more permanent home-office arrangement, employers should consider whether such a workplace is fully satisfactory in relation to the individual employee (eg, with regard to ergonomics and the indoor environment). The written agreement to be entered into should regulate who is to cover the costs of amending an employee's home-office situation.
Experience in recent months shows that employees react differently to working from home. Some employees are coping well and some have even seen an improvement in their mental health. However, some employees are experiencing various forms of mental wear and tear at their home office. For some, this may lead to more serious health problems. Being able to meet colleagues in a workplace will be important for many employees in terms of wellbeing, learning, unity and information flow.
Employers should follow up with their employees individually in order to assess their mental wellbeing.
In addition to individually following up with employees, employers have a duty to work systematically to reduce the risk of mental health issues. Many employers have seen positive results on the introduction of guidance on preventive work that employees can do themselves and routines that facilitate such individual prevention. While employers should be clear with respect to their expectations for employees' work effort and performance, they should also highlight the importance of taking breaks (preferably outdoors if possible) during the day. Employers should also facilitate professional and social meeting points, both digitally and physically, for those who need them.
Section 6 of the regulations focuses on the working hours allowed for remote working. The provisions on working hours do not apply to employees in senior or particularly independent positions. If employees work partly from their home office and partly from their employer's premises, their employer must comply with both the working time provisions pursuant to the regulations for home offices and the working time provisions pursuant to the Working Environment Act.
The regulations include a number of exceptions to the working time provisions in the Working Environment Act (eg, the rules on the average calculation of working hours in Section 10-5 of the Working Environment Act do not apply). Pursuant to Section 6 of the regulations, normal working hours are 40 hours a week. Mandatory work conducted beyond the normal working hours is classified as overtime. Working hours must be arranged so that employees do not exceed 48 hours a week, including overtime, during a four-month period.
Thus, the regulations give employers and employees greater flexibility in determining the organisation of working hours within a permanent home office when compared with the Working Environment Act. However, at the same time, the framework for the average calculation of working hours is more limited, as no further average calculation of working hours can be agreed than that which follows from the regulations.
Prior to issuing a potential agreement on a home-office scheme, employers must assess when they want employees to perform work and at what times employees must be available to them. As mentioned above, provisions in this respect must be included in a written agreement. Such provisions will reduce the risk of doubt and disagreement between the parties at a later date.
Individual employees must meet their duty of confidentiality at home in the same way as they do at the workplace. Thus, employees must process and store documents properly so that third parties, including family members, cannot access them. When the working day is over, any documents should be cleared away.
Employees' computers and associated programs should also be blocked for use by others or family members with a strong password that is regularly updated. Computers should also have systems that cause them to go into sleep mode quickly if employees leave their desk and they should be turned off at the end of the working day.
Employers should have clear guidelines regarding document storage, including archiving and shredding work-related documents at the home office. Further, employers should have systems for automatically updating computer passwords and hibernation modes. Employers should also have guidelines regarding phone calls and digital meetings. Outsiders should be unable to overhear such meetings.
In the same way as for confidential information, companies' routines for processing personal data must be maintained in home offices. Documents which deal with personal or sensitive information must be unavailable to unauthorised persons. Moreover, such documents must not be thrown away untreated for recycling. They should, as applies to confidential information in general, be stored in a safe place or shredded. Employers should regulate such issues in an agreement or internal guidelines.
Data security is an increasingly important focus area for most businesses. The methods, services and tools that companies use to ensure the production, storage and transmission of data in the workplace are often not adapted to home-office situations. Employers should have clear guidelines that are adapted for the home office and a solid internal control and deviation system to detect and handle any data breaches.
There are several solutions and measures that can make home offices safer for businesses. The key is to secure digital data and ensure that employees can securely connect from home.
Employers should create routines for what measures employees must implement to ensure that they work from a secure network. The Data Inspectorate proposes several security measures that can be used as a starting point.
There is a great risk associated with logging on to public networks (eg, networks in restaurants, hotels and elsewhere in the public space, where many people will have access to the network's password). Employers should consider instructing employees not to log on to such networks on electronic equipment that is also used for work purposes.
However, in some situations, employees may need to connect from somewhere where they cannot access their home network. An alternative in these situations may be for employees to connect to their mobile phone's network. This is considered more secure than logging on to a public network. If such a need is likely to arise, employers should consider offering employees a mobile subscription that contains sufficient mobile data for such use.
Employers should also consider whether it is necessary to prohibit the use of private communication systems in a work context, such as WhatsApp or Facebook. This to ensure that all work-related communication is available on the work network.
In principle, the Occupational Injuries Insurance Act also applies to work performed at a home office. However, an injury must have occurred while the employee was working at the workplace during working hours. This can raise difficult questions of evidence in connection with home working. Home offices are a flexible solution that allows employees to combine short tasks at home with being at work. Questions include, for example, would an insurance policy cover injuries that occur during working hours but when an employee falls down the stairs after having started their washing machine?
To avoid such doubt, employers should consider taking out supplementary insurance for employees (eg, leisure accident insurance) so that employees are covered even if it is doubtful whether the injury occurred while they were 'at work'. In that case, employers should examine and ensure that the supplementary insurance provides equal coverage in the event of injury as occupational injury insurance.
Remote working abroad, where employees are abroad for longer than a short stay, raises a number of additional questions relating to, for example, taxes, social security rights and insurance. Therefore, employers should think carefully and possibly carry out further examinations before allowing employees to work remotely abroad.
Employers must ensure that the statutory requirements at the home office are met with reference to the regulations on work in employees' homes and otherwise consider how a possible home-office scheme can best serve the individual company.
Employers should also, in consultation with any employee and safety representatives, evaluate the scheme from time to time, so that necessary adjustments can be made with regard to employees' working environments and the proper operation of the company's business.
For further information on this topic please contact Ole Kristian Olsby or Nina Elisabeth Thjømøe at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email (email@example.com or firstname.lastname@example.org). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.
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