Working from Home (“WFH”): Legal Issues to Consider
The past weeks have seen Malaysians feeling a sense of déjà vu after the Government announced a second round of the Movement Control Order (MCO). When the whole world was struck by the COVID-19 pandemic, the phrase ‘new norm’ has certainly developed a wider meaning. In our daily lives, new norm means getting our temperature checked, checking in via the My Sejahtera App when out and about, using face masks, practicing social distancing, etc. New norm in the context of employment is the implementation of work-from-home (WFH) arrangements that allow employees to discharge their duties remotely from home without having to be physically present in the office. Given the WFH scenario, employers and business owners are left scratching their heads thinking how they can best balance the need of their business while maintaining duty of care to their employees.
Establishing Ground Rules for WFH
Having a clear and effective WFH policy in place is one of the most important considerations for an effective WFH arrangement. Employers cannot just start sending employees home without a clear idea of how the WFH policy works. Failure to pay attention to the details of such arrangement can cause serious implications, especially if the employees are not monitored properly. Some of the important factors to be considered by employers in developing a WFH policy are:-
Eligibility
Every employee’s situation and jobs scope is different and employers must be able to decide which employees are eligible to work remotely as they not only need to have a job scope that is suitable for remote working, but they also need to be organized, disciplined and self-motivated. In doing so, the employers may analyze the type of work the employee is required to perform. Employees who require a strict routine to produce results may not be best suited to work from home.
Expectations
For some employers, the flexibility that comes with the WFH arrangements is extended to working hours. Some employers allow employees to create their own work schedule while some require employees to comply strictly with set hours. Either way, it is important for availability expectations to be clearly communicated in the WFH policy. It is also recommended for employers to establish expectations on employees’ responsiveness when working from home to ensure that productivity remains optimal.
Working Environment
This is particularly important as it concerns health and safety issues. Employers may have preference on the physical environment the employees should work in. Some even require employees to obtain approval on the physical environment prior to working remotely. As employers are not able to monitor a remote employee’s environment for safety purposes the same way they can in the office space, ensuring a safe and healthy work environment is a necessary component of a WFH policy.
Data Privacy and Client Confidentiality
With WFH being a regulated measure adopted by the government, this means that in some households, there are multiple people working or studying at the same time. Employees need to take the necessary precautions when having confidential conversations so as to avoid leaking of private information and documentation.
Cyber threats such as malware and phishing attacks are also greater when working from home. One of the main causes of such issue is because the employees are using their personal devices which mostly are improperly secured for work-related activities. To eliminate the risk of cyber attacks, employers may need to consider imposing certain guidelines on data security such as requiring employees to use antivirus solutions on their personal devices or forbidding employees to work on public Wi-Fi.
Employers may also opt to provide company laptops for the purposes of working from home with clear guidelines as to the specific use of such laptops. Along with the guidelines, employers have to ensure remote tech support is offered to employees who are having technical difficulties when working from home.
Productivity Measurements
This is often cited as one of the major pitfalls of WFH arrangements and the reason why many Malaysian employers are apprehensive of allowing their employees to WFH. Most companies have an employee evaluation system wherein employees are evaluated on a regular basis for their annual raises. However, the question at the mind of most employers is how do they measure the productivity and assess the performance of WFH employees?
Generally, there are several methods employers may use to measure the productivity and performance of remote employees.
By understanding the business goals, employers can define the metrics and have frequent revision to ensure the employees are on the right track.
The first step in measuring productivity or performance is by creating a policy that lays out how it will be done and ensure this is communicated to the employees. Some other ways to ensure productivity of the remote employees are:-
• Setting tasks with deadlines;
• Having online collaboration;
• Tracking the KPI’s;
• Placing value on quality of work;
• Analyzing work outcomes;
• Recognizing goal achievements;
• Collecting feedback to understand employees’ productivity.
Conclusion
The end of the battle against COVID-19 is nowhere near in sight and it seems like the WFH arrangements may be here to stay for a while. We are fortunate that the times we are in allow for employees to continue work and to a certain extent, businesses can continue to operate and generate income whilst employees work from home.
While most are being receptive to the flexibility of working from home, it is undeniable that there is a different set of challenges that comes with it. Therefore, in order to ensure productivity is optimized, it is important for employers to ensure that a well thought out WFH policy is put in place taking into account the practical considerations and legal issues surrounding it.
Written by:
Melinda Marie D’Angelus (Partner) melinda.dangelus@azmilaw.com
Khairunnajihah Aqila Mohd Sofian (Associate) najihah.aqila@azmilaw.com
