Flexible Work into 2021
For many employers and employees, 2021 is likely to be an experiment in remote and blended work arrangements and getting it right is likely to present challenges for many workplaces.
While the public health order requiring employers in NSW to allow their employees to work from home – if reasonably practicable has been repealed, working from home has become the norm for many employees.
Many Sydney employers are not exercising their right to force the return of staff following the recent outbreaks; however, employers can now direct their employees to work from their workplace and staff generally have no legal right to insist on working from home instead of a COVID-safe office.
If an employee reasonably believes that it is unsafe to go to work, for example, because the employer has not taken appropriate measures to combat the risk of infection, they could lawfully insist on staying at home. But if an employer is complying with relevant health directives, or if any risk of infection is negligible, that might be hard to establish.
We advise our members to consider a refusal to return to the office on a case-by-case basis, taking into account the employee’s reasons for refusing and the operational requirements for having an employee onsite.
Outside of refusals to return on safety grounds employers should also be mindful that there are other avenues employees can explore which may allow them to continue working remotely.
There are some circumstances under the Fair Work Act where workers have the right to make a request for flexible working arrangements, including working from home. These include if the workplace isn’t safe, having a medical condition that makes a worker more susceptible to respiratory infection, needing to care for a family member or being over the age of 55. While employers can refuse these requests on reasonable business grounds, they must have considered them.
CCER will be hosting a webinar on Tuesday, March 16th where we will be taking a closer look at flexible work requests. In particular, the right to request – who can request, what can be requested, time limits for responding to a request and the grounds on which a request can be refused.
We look forward to seeing you at our webinar, however, In the meantime be sure to stay up to date with ever-changing health advice which may impact you and your employees working arrangements.