With technological advances, work done at home offices or locations other than the place of business, has multiplied, which has reinforced the importance of adopting legal guidelines and measures to give greater predictability and security to parties involved in this type of working relationship.
Seeking to regulate such relationships, Law No. 13,467/2017 (the Labor Reform) added to the CLT (Consolidated Labor Laws) articles 75-A to 75-E regarding teleworking, defined as the provision of services by an employee “predominantly outside the premises” of the employer, through the use of information and communication technologies which, by their nature, do not constitute outside work,” pursuant to article 75-B of the CLT.
Despite various advantages for employer and employee, including reduced commuting time, commuting costs, and possibly infrastructure costs, teleworking is very much questioned due to the risk of employer liability for accidents suffered by employees while working, even when outside the company's premises.
It is important to highlight that this work regime is subject to the same rules as are applied to services provided by employees within the company’s establishment, including workplace safety rules.
In the case of work done within the employee's home, there is no doubt that the concept of the work environment needs to be expanded and also applied to the worker's private environment, which must be in accordance with the legally established health and safety rules.
Although the work is performed outside the company's physical space, that is, away from its immediate control, it is important to clarify that the CLT, in its article 75-E, obliges employers to expressly and ostensibly instruct employees with respect to precautions against occupational diseases and accidents.
Although it is possible to abstractly hold companies liable for proven damage to teleworkers, the difficulty in proving both a causal link and the employer's fault is undeniable. That is: not all accidents should be treated the same. Case law, for example, tends to regard mishaps during working hours as an occupational accident, but it is important that each case be reviewed taking into account the activities performed at the employee's residence.
In order to avoid accidents and contribute directly to employee health, it is recommended that the company develop a “Workplace Health and Safety Standards Manual,” which will serve as a reference for good practices and provide employees with information about the rules to be followed and the risks to which they are subjected.
The standards should be available for consultation by employees with easy and unrestricted access. Regularly, to demonstrate their concern with this topic, employers should reinforce the importance of compliance with the standards, preferably by updating the training provided. They should also require employees to expressly and in writing state that they are aware of and commit to abide by the rules established, which may include issues such as:
- Use of ergonomic equipment (provided by the company or purchased by the employee), such as ideal type and height of chair and correct type of headphones;
- Prohibition on the use of splitters and extension cords to avoid short or shock by contact with equipment;
- Responsibility for setting up the office in the employee's home environment, or at least clear information on the rules and procedures to be followed; and
- Adequate training regarding the practices to be maintained in order to fulfill occupational health and safety regulatory standards.
The purpose of the measures is to protect employers in the event of legal claims in which employees allege ignorance of the rules or technical inability to comply with them. In the event of a labor claim due to an accident, it will be up to employees to demonstrate that they did not receive adequate training in seeking to hold an employer liable.