Working from home: A legal perspective

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By Russell Lamb, Consultant, Simmons & Simmons

The past weeks have seen what Bloomberg News calls the “world’s largest work from home experiment” following the World Health Organisation (WHO) declaring the outbreak of novel coronavirus (COVID-19) to be a “public emergency of international concern”. The number of confirmed cases of the virus has been rising around the world and continues to do so.

To minimise the spread of COVID-19 in Hong Kong, the government has directed its employees (except those providing emergency and essential public services) to work from home since early February 2020 and has, since then, repeatedly extended those special working arrangements. Per the government guidelines, private sector employers have adopted similar flexible work arrangements where practicable, leading many organisations to encourage or request that its employees work from home.

As the spread of (and uncertainty around) COVID-19 persists and working from home becomes the “new normal”, it is important that employers take note of related legal issues which can arise.

Privacy rights

Employees working from home might use personal devices to access work systems which could mean that employers may be able to access and surveil all information on that device, depending on the capability of the monitoring software and equipment. If this is the case, employers should ensure their privacy notice, handbooks and Personal Information Collection Statements reflect this practice so that an employee is aware both private and work communications may be so accessed.

Employees not wishing, or unable, to work from home

Employees are generally happy to work from home. It is, however, possible that employers may see resistance from employees the longer the current situation continues, particularly from those with young children if schools remain shut. Some employers may make it clear in employment contracts that employees are expected to work from home from time to time. For others, it is likely to be reasonable for an employer to require that employees work from home in scenarios like this, and where it is consistent with Government guidelines. However, individual objections, and the reasons behind them, should always be considered.

Confidentiality

Data security is more difficult to oversee with remote workers as it can be easier for employees to access and remove information when outside the office. It is also more difficult to ensure confidentiality of sensitive data if staff are accessing company systems from coffee shops and other public spaces where the screens easily visible or if they use unsecure public WIFI. Employers are well-advised to ensure that any work devices have appropriate restrictions and safety mechanisms in place and that employees are educated on the risks involved, as well as on how to minimise them.

Health and safety

As a home working environment constitutes an extension of the workplace, employers should bear in mind their duty to ensure a safe workplace under the Occupational Safety and Health Ordinance. Employers should, for example, ensure that any electronic equipment provided is properly tested and fit for purpose. (Failure to comply with this ordinance is a criminal offence.)

There are other practical issues which can arise with home-working – such as, employee productivity, access to relevant equipment (including printers and high speed internet) and making sure that all workers feel they are able to work as part of a wider team notwithstanding that everyone will be in different locations.