Member Article

In this article, Grace Chai Huey Yann explores common issues relating to remote working arrangements implemented by employers in response to the Covid-19 pandemic.

Introduction

The Covid-19 pandemic has caused unprecedented impact on businesses worldwide, especially when international borders are closed and various degrees of lockdown are introduced in response to the pandemic. Since the first quarter of this eventful year, virtual working has become the option for many employers. It is safe to say that by now, Working from Home (“WFH”) is no longer a foreign concept.

Although Malaysia has entered the Recovery Movement Control Order (“RMCO”) period since June where most businesses had resumed operations subject to compliance with the relevant Standard Operating Procedure (“SOPs”) in place, the situation of the pandemic remains uncertain both locally and internationally.

Consequently, employers continue to review their employees’ working arrangements to ensure continuity of their businesses. It is therefore important that employers understand their legal obligations to ensure that any measure taken is lawful.

Temporary or permanent arrangement?

Different employers may have different plans in mind. Some are considering long-term WFH arrangements: Twitter has announced the option for its employees to WFH permanently. There are also some who intend to implement this arrangement temporarily only as a reaction to the Covid-19 situation. Regardless of the plan, communication with employees is the key.

If an employer plans to ask its employees to eventually return to their workplace, even if they were able to work from home previously, it is important that the employer ensures its communications to the employees are clear that any WFH arrangements are not intended to extend indefinitely.

This is because if the employer is not clear in its communications that the arrangements are meant to be temporary, the employees could assert that these arrangements have become permanent through custom and practice due to the conduct and behaviour of both parties, or due to an expectation or assumption.

For there to be a custom and practice, the arrangement must be long-standing and established. Further, it must be continuously applied, certain and known to the parties. As such, there is a risk of such expectations arising if employees continue to WFH for an extended period.

It is imperative for employers to note that generally any changes to their employees’ terms and conditions of employment must be with the employees’ consent. Therefore, in the event that the WFH arrangements are intended to become permanent, it is advisable for the relevant changes to the employees’ terms and conditions of employment, such as a change in the place of 13 work, be documented in writing as soon as reasonably practicable.

Additionally, employers should undertake a review of their policies to ensure that they remain fit for purpose whilst the employees work remotely. For example, any health and safety policy will need to be suitably tailored.

Do temporary WFH arrangements impose additional obligations on employers?

The obligations of employers remain, such that employees working from home must continue to receive their salary at their usual rate and the usual employment terms and conditions still apply.

Where a benefit or entitlement is contractual, employers are obliged to continue paying the employees such benefits, even if they are working remotely. For example, eligible employees should continue to be reimbursed for any overtime worked in accordance with the company’s applicable overtime policy.

Whilst temporary WFH arrangements do not impose additional contractual obligations on the employers, employers should be mindful of its implied duty of trust and confidence towards their employees. This may include having employees’ expenses for certain home-working equipment reimbursed or providing the employees with equipment or software to enable them to perform their usual duties at home. As part of this, companies may consider updating their expenses policies accordingly. Ultimately, employers should ensure that their employees are not shouldering the business costs of the company.

Although it may not be practical for employers to assess the health and safety of their employees’ remote working location, employers can consider providing guidelines or advice for employees to carry out basic risk assessments at home. Employers may also issue policies to make sure that, ultimately, it is the employees’ responsibility to maintain a safe and ergonomically sound work environment.

Other considerations

As employees work offsite, certain sensitive information can be susceptible to abuse. As such, employers should consider updating any policies relating to the use of IT, personal data and confidential information to prevent them from being misused or mislaid whilst the employees work remotely.

Some examples include issuing policies to ensure that employees keep their equipment password protected, store the equipment in a safe and clean space when not in use, follow all data encryption and protection standards and prohibiting the use of the company’s equipment by anyone other than the employee.

As remote working is a relatively new arrangement for most of us, employers should continue to provide adequate support to the employees to ensure the efficiency of the workforce, albeit in a virtual format.

For example, it may be prudent for employers to clarify that any WFH arrangement is not intended to be a substitute for in-home child or dependent care. In this regard, employers can consider giving guidance to employees to make appropriate arrangements to ensure that the expected attention is devoted to job performance during their work hours.

Employers should also keep in regular contact with the employees to ensure effective communication between the parties, including 14 on the well-being of the employees.

Conclusion

As the Covid-19 situation continues to evolve, it is prudent that employers remain flexible and open to adopting changes in the work environment to ensure the continuity of businesses. If proper implementation of remote working arrangements allows businesses to continue their productivity, returning to work post-Covid-19 may not necessarily require one to return to the office desk anymore.

GRACE CHAI HUEY YANN

EMPLOYMENT AND ADMINISTRATIVE LAW PRACTICE GROUP

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