Mark Zuckerberg recently shared his plans for the future of remote work at Facebook. By 2030, he promised, at least half of Facebook’s 50,000 employees would be working from home. To know what’s “best” for your business or company’s future when it comes to remote work, there is a lot to consider.
Although there is no clear legislation on remote working yet, businesses need to contemplate the various scenarios and how it will work best for everyone. The following are some Q&A’s on the topic worth noting….
As we may have to live with Covid-19 for the foreseeable future, many employees may continue to work from home indefinitely. However, what happens if an employee requests working from home on a long-term basis.
There is no absolute or general right to remote working or indeed any type of flexible arrangement beyond contractual terms. Some employers may have already written into their contract of employment that employees can work from home for a number of hours or days per week. If this is the case, those entitlements will remain in place. If working from home is to be a permanent arrangement it may be necessary to update the employee’s contracts of employment to reflect this new arrangement. This can be done by way of an addendum or side letter. It would also be advisable to implement a Remote Working Policy in light of Covid where employers should reserve the right to amend and oblige home workers to attend at the office upon request and sets out the employers framework approach. Employers should be aware that if an employee works from home for an extended period that the right to work from home could become an implied term of their contract through custom and practice.
Employees in other jurisdictions (such as the UK) have a statutory entitlement to apply for flexible working arrangements. While not currently available in this jurisdiction (except in a very limited way under the Parental Leave Acts), EU Directive 2019/1159 on work-life balance for parents and carers requires legislation to be enacted in August 2022. The benefit of this is that workers with children up to the age of 8, and carers, will have the opportunity to apply for flexible working arrangements. The Law Society has recommended that legislation in implementing this directive should provide all employees with the opportunity for flexible working arrangements.
At present there is no specific regulation governing remote or flexible working in Ireland. Leo Varadkar recently announced that employees should have a legal right to work from home or at the very least the legal right to request home working. It remains to be seen if new legislation will be brought in to take account of this new reality for remote working. It may be the situation where there may be a move to blended working in the future that would mean a mixture of working in the office and at home.
At the moment the usual employment law principles and statutes apply when working from home and employers have the same obligations to employees who work from home as they do to employees in the office such as working hours, rest breaks, health and safety and annual leave entitlements.
Communication is key and employers are encouraged to talk to their employees if they are seeking a more permanent arrangement.
The Sick Leave and Parental Leave (Covid-19) Bill 2020 which will provide an entitlement for employees to paid leave during periods of illness or injury and which will include the entitlement to leave on grounds of force majeure for parents whose children are unable to attend school or a pre-school service by reason of Covid-19 measures is currently at the second stage before Dáil Éireann. This bill proposes to amend the Parental Leave Act 1988 and the Parental Leave (Amendment) Act 2006 and so parents will be entitled to paid Force Majeure Leave. This leave will commence and continue for as long as the child concerned is unable to attend the recognised school or pre-school service concerned and such employee’s presence is required at home to care for that child.
In addition, employers have the same obligations to employees who work from home which includes annual leave entitlements. An employee still builds up their annual leave when working from home. The Organisation of Working Time Act provides for adequate rest breaks, daily rest breaks and weekly rest breaks as well as annual leave and public holidays.
While working from home, employees may be eligible for tax relief on expenses like light, heat, telephone and internet usage.
The Employer may pay an allowance towards these expenses, where an employee can get up to €3.20 per day without paying any tax, PRSI or USC on it. If the employer pays more than €3.20 per day to cover expenses, the employee will pay tax, PRSI and USC as normal on the amount above €3.20.There is not a legal obligation on employers to make this payment to employees.
If the employer does not pay the employee an allowance for expenses, the employee can make a claim for tax relief at the end of the year. The employee will get a refund from the taxes paid.
Heating, electricity, broadband and other vouched expenses where they are “wholly, exclusively and necessarily” part of an employee’s work.
First and foremost, Covid-19 is a public health issue. If an employee has developed symptoms the HSE advises self-isolation if they are waiting to get tested, awaiting test results, has any cold or flu-like symptoms or has coronavirus. Any employee who has developed symptoms should be on sick leave and therefore not working and if an employee is asymptomatic, it may be possible for the employer to ask the employee to work from home.
Employers have a legal obligation to ensure the safety, health and welfare at work of their employees under the Safety, Health and Welfare Act (the 2005 Act). Covid-19 may present a health risk to employees and other persons at a workplace and so the Health and Safety Authority have recommended as far as reasonably practicable, that an appropriate risk assessment is conducted in the workplace.
In situations where an employee refuses to be tested, it will depend on the particular policy or contract the employer has in place. If such a provision provides for medical examination, they cannot reasonably refuse to be medically examined. Where no provision is in place it must be explained to the employee that this is in their best interest for both them and their work colleagues and all information gathered will be held in the strictest of confidence.
If employees are returning to the office following remote working they should complete a pre-return to work form at least 3 days in advance of the return to work which confirms they have no symptoms, are self-isolating or are awaiting a Covid-Test.
For more information and advice on Remote Working contact our experienced solicitors today on 01 663 2000.
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