(Never) work with children or animals . . .

What are the issues for employers when employees seek to work at home while caring for their children?

An increasingly common request from employees is to do part of their work at home outside normal hours in exchange for leaving work early or arriving late to collect their children from school or day care and take them there in the morning. Several issues need to be taken into account when considering such requests, and are discussed in this article.

The main issues that may concern employers are as follows:

• What are the legal provisions that affect what arrangements can be made? 
• Can the employer direct that the employee perform work only at times when he/she is not the ‘primary carer’ (eg when the employee’s partner is also home to supervise children)? 
• What workplace health and safety issues need to be addressed with such arrangements?
   

What are the relevant legal provisions?

The National Employment Standards provide eligible employees with the right to request flexible working arrangements if they are a parent of children either under school age or under 18 with a disability. The employer can only refuse such a request on ‘reasonable business grounds’. For a detailed discussion of these provisions, see this WorkplaceInfo article.

If the employee is covered by an award or agreement, its provisions should be studied closely. For example, penalty rates may be payable for working split shifts or working outside the span of ordinary working hours. In such cases, the employer could consider using an Individual Flexibility Arrangement (IFA).

Issues that can affect whether there are reasonable grounds for refusing an employee’s request include the following:

• whether the employee can perform his/her work satisfactorily while simultaneously caring for children — this can depend on the type of work (eg degree of contact with customers, time deadlines, whether constant monitoring is required, whether work has to be done continuously or can be done sporadically) 
• age of the children (eg school-aged children usually require less supervision than pre-schoolers) 
• how the business has treated previous requests by employees for flexible working arrangements 
• health and safety issues — see further discussion below.
   

Risk assessment of impact of children required

The possible distraction the presence of children could cause to an employee while in the course of employment should be evaluated by a risk assessment. As the employee’s home becomes part of his/her ‘workplace’, obligations in respect of both workplace health and safety and workers compensation will arise.

Work health and safety legislation requires the ‘person conducting a business or undertaking’ (PCBU) to discharge a duty of care to provide a safe and healthy working environment. This means that the PCBU should address a number of practical issues regarding working at home:

• Identify possible work hazards at home and the degree of risk they pose. 
• Alternatively, have the employee complete a risk assessment checklist and submit it along with photos of the proposed work area. This will indicate whether a more formal risk assessment is required. 
• Clearly define the boundaries of the workplace, including the areas of the home that are excluded from it due to a risk to safety (eg garages, sheds, cellars or basements). The designated workplace must allow access to toilet facilities and a lunch room. 
• Ensure the facilities of the home workplace are in good order and do not pose a threat to the health and safety of the worker or others. 
• Ensure safe access to, and exit from, the home workplace. 
• Ensure the home workplace has adequate first aid and emergency management facilities such as fire extinguishers, safety switches and smoke alarms. 
• If the entry of children to the employee’s designated work area poses a safety or other type of risk, steps to prevent such entry are required.
   

Procedural issues

As well as the practical health and safety steps discussed above, some procedural and management issues also need to be addressed. It is recommended that this be done via a formal working-from-home agreement implemented after consultation with the employee. This agreement should cover the following issues:

• clear definition of the required hours of work — if work MUST be done at certain times, state this clearly 
• expected outcomes of the work done at home — covering quantity, quality, deadlines, etc 
• procedures for maintaining contact with the ‘official’ workplace 
• obligations on the employee, such as cooperating with reasonable instructions to manage risks, maintaining regular contact with line managers 
• procedures for supervision of employee 
• providing any equipment required to minimise risks 
• any insurances that the employee must take out to cover working at home 
• nature and timing of reviews of the working at home arrangement. Both an initial trial period and regular reviews thereafter are recommended.
  
   

Not all workplaces and employees are suitable

Sometimes the assessment must conclude that a working-at-home arrangement is not feasible for a particular employee.

Reasons may include:

• The nature of the work precludes it; for example, potential interruptions caused by children simply cannot be accommodated, the hours worked by the employee (eg outside the normal span) do not suit the job such as when it involves constant customer interaction during normal business hours, or major disruptions to customer service or work flow will be caused by remoteness and/or different working hours. 
• It is impracticable to modify the home workplace to the extent that health and safety risks are reduced to a minimal level. 
• Disputes can arise when some employees are allowed to work at home and others are not. Therefore, ‘reasonable business grounds’ (which include workplace health and safety) must be the sole criteria for declining any requests and the same evaluation criteria must be applied to every request.
  
   

Note: do not, use ‘potential distractions by children’ as a convenient excuse to reject a request. It must be supported by an evaluation of both the job itself and the workplace that demonstrates that interruptions would genuinely be a risk to work quality and safety.

Source: Mike Toten is an HR Consultant who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. He is a regular contributor to www.workplaceinfo.com.au WorkplaceInfo, Australia’s premier news and information website for HR/IR Professionals, where this article was first published.