Before the Covid-19 pandemic, few employers allowed or even considered allowing working from home arrangements in Kenya. Covid-19 forced many companies to experiment with this and the findings were not unpleasant – people can actually deliver on their work assignments from home. Even though an immediate shift to more permanent work from home arrangements (“WFH”) is unlikely in the near future, it is now a tested model with real data that employers can use in deciding how to establish their work spaces going forward.
For employers considering the adoption of WFH arrangements permanently, there are various legal issues to take into account in developing their WFH polices. This article discusses two of these issues that have been subject to considerable debate in this Covid-19 season.
Reimbursements of Work From Home Expenses
The first issue is the all important question of whether the employees working from home would be entitled to any reimbursements of WFH expenses. Before the coronavirus pandemic, the laws of most countries including Kenya, did not provide for reimbursement of WFH expenses. The Kenyan Employment Act simply provides that the contract of employment should state the remuneration, scale or rate of remuneration, the method of calculating that remuneration and details of any other benefits. In the absence of express legal requirements, employers in Kenya are currently free to adopt their own policy regarding WFH reimbursements, noting that where the policy changes the employment terms, the employer should, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing. The amendment could simply be to revise the employment contract to incorporate the WFH policy.
In such a policy, employers should consider reimbursing workers for their reasonable and necessary home office expenses incurred in performing required tasks. The International Labour Organization (ILO) advises that these could include a portion of the expenses associated with: mobile phone or landline costs, internet costs, personal computer or tablet, and teleconferencing software or hardware. ILO further advises that employers may exclude home office expenses which are mainly for the convenience of the worker, such as: a faster Internet connection, additional computer monitors, ergonomic chairs, or printers.
A thornier issue is reimbursement for rent. In Kenya, an employer is not bound to specifically pay an employee house allowance. An employer could instead offer housing, or consolidate the basic salary and housing allowance and pay the employee one consolidated amount. Employers may argue that the costs related to the employee’s home workspace is factored in the remuneration agreed with the employee who chooses the WFH arrangement. However, employees may not agree with this argument. In fact, in 2019, in ruling on the question whether companies should pay remote workers’ rent, the Federal Supreme Court of Switzerland ruled that if an employee is required to work from home, the company must pay a share of the rent if the employee does not have a suitable workplace. The Swiss legal community seems to have interpreted the ruling to provide a test for reimbursement where the deciding factor is whether an employee has to work remotely or chooses to do so. If the employee could also work from the office but chooses to work from home, then they are not entitled to reimbursement. The employer did not save any money.
In terms of how the rent reimbursement is calculated, this is agreed contractually. The employer and employee could specifically agree on a figure. In other jurisdictions, the reference point is usually the employee’s salary as opposed to the cost of office space. In the court case mentioned, the part-time employee did not have to rent a bigger apartment or incur other additional costs by working remotely, but was entitled to a monthly rent reimbursement of CHF150 because the company was able to save on office rent. A BBC article discussing this case referring to estimates of the Zürich branch of the Swiss Tenants Association estimated the cost of office space in Zürich to be between CHF3,000 and CHF5,000 per employee per year. Using the lower rent estimate, this is about CHF 250 per employee per month. As such, it is prudent for employers who wish to provide for rent reimbursements in their WFH polices, to clearly state the amount payable or the basis for calculating it, in order to avoid any ambiguity that could end up in expensive law suits.
Overall, employers should ensure that the WFH policy specifies which expenses it will cover for WFH situations and if possible, specify that employees must seek the organization’s prior approval for the reimbursement before incurring the expenses in WFH situations.
Employer Liability for Safety and Health of Employees
The second issue is the extent of the employer’s liability for the safety and health of the employee and their home workspace. The Employment Act provides that an employee’s written contract must, among other things: state the employee’s place of work or, where the employee is required or permitted to work at various places, an indication of that place of work and of the address of the employer. As worded, the Employment Act seems to envisage that the employer will be the one providing the place of work. However, the Occupational Safety and Health Act (“OSHA”) can be interpreted to extend the employer’s work place to cover the employee’s home workspace by defining a ‘workplace’ broadly to include ‘any land, premises, location, vessel or thing, at, in, upon or near which, a worker is, in the course of employment’. The implications of this is that employers with WFH arrangements may be held liable for injuries that take place in the employee’s work from home space during their working hours.
OSHA provides the mechanics for such liability but in general, liability of the employer may arise where the injury occurred during the employee’s working hours, in the course of his employment, and in a location where the employer anticipated the employee to perform the work (although OSHA’s emphasis is not so much on the location where the employee was performing the work but on whether the employee was performing his duties in the course of his employment). As such, it is advisable for employers to review its existing employers’ liability insurance and medical insurance policies to ensure that they cover WFH. It is also advisable to formulate a checklist or guiding framework to enable WFH employees to themselves conduct periodic risk assessment of their home workspaces. This should be coupled with regularly reviewed policies setting out preventive and protective measures to enable the WFH employees to comply with the requirements of safety and health under OSHA. Further, as advised by ILO, the employer should ensure that its organization’s policy should expressly exclude any liability for injuries arising in the employee’s home outside of the stipulated work hours, or any loss destruction, or injury that may occur to the home of the employee. This should include family members, visitors, or others that may become injured within or around the worker’s home.
Article by Felicia Solomon Tunje and Mildred Chidosho