By Messrs, B.N., O.G., and I.O.
In as much as the employers have the managerial discretion to undertake various strategies in ensuring the sustainability of their various businesses during this pandemic, it is highly expected that the rights of the employees are upheld at all times pursuant to Article 41 of the Constitution of Kenya including other reasonable enabling laws. The reasonable care for employees is interpreted as the specific duties and responsibilities by the employers to ensure the safety of its employees.
However, the Employment Act, 2007 requires that the employment contracts state the place of work (see section 10(2) (f)) and it is highly likely that the majority of the employment contracts have such a provision. In situations where the employee has opted to work from home or remotely from work due to pandemics such as COVID19 outbreak, they are highly likely to be in breach of their contract and legal provisions as set out as a requirement by the employment Act not unless it is a result of the agreement between the employer and the employee.
The duties that an employer has under the OSHA would extend to circumstances where such an employee renders services to the Company remotely from home. For purposes of the OSHA, the employee’s ‘workplace’ would be her/his home. Ordinarily, how the employer will ensure a healthy and safe working environment would depend on the sort of work that is being carried out from home and what equipment and assistance may need to be provided to employees by their employer. The specific duties of the employers are to ensure the safety, health, and welfare of employees at all times within the workplace (see section 6 of the Occupational Safety and Health Act).
The key duties applying to the working activity and workspace includes such as management and conducting all the work activities aimed at ensuring the employee has a reasonably practicable to uphold their safety, health and welfare, provision of safe systems of work that have been planned, organized and maintained; provision of assessment of risks and implementation of appropriate control measures and ensuring there are plans in case of any emergencies.
Additionally, the Responsibility for the health and safety at work pursuant to the OSHA 2007 rests with the employer notwithstanding whether they employee carries his/her duties from office or at home as agreed between themselves as noted above. It is therefore upon the employer to consult their employees and assure themselves that the employee is aware of the risks associated with working from home or remotely; that the assigned work activity or temporary space of work is suitable; that there is provided suitable equipment enabling work to be done; and that there are pre-arranged means of contact.
In addition to the OSHA, the Employment Act requires an employer to regulate the working time of its employees with due regard to their health and safety and to their family responsibilities. Employers are required to, as far as is reasonably practicable, provide a workplace that is free of risk to the health and safety of its employees and that this requirement would persist during the COVID-19 pandemic and the Lockdown subject, of course, to an employee actually working remotely from home. In the case of distant work, the employer shall consider suitable working time arrangements, special provisions concerning assignment and delivery of work, reporting requirements. Moreover, the employer is responsible for healthy and safe working conditions. It shall be considered carefully how to limit the options for the employee to change his working place at the employee’s discretion.
In the normal course, an employer may require their employees to sign an indemnity form in which they warrant, among other things, that their home office is safe. While the present circumstances are extraordinary, it would probably be appropriate for an employer to ask its employees to sign and return a warranty and indemnity form in relation to working remotely from home.
However, it would probably also be prudent to take further steps under Section 6 (2)(c) of the OSHA to, inter alia, meets the requirement of “the provision of such information, instruction, training, and supervision as is necessary to ensure the safety and health at work of every person employed”, through appropriate information and instructions being given to employees working from home on how to avoid or limit the risks to their health and safety in the home working environment.
The employer is further responsible for providing the technical means for distant work and for ensuring that the employer’s property (i.e. the equipment provided to employees) is well preserved.
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