This article is written by Amardeep Singh Toor (Partner) and Alycia Tan Wei Wenn (Associate) (Lee Hishammuddin Allen & Gledhill) (LHAG) and was published in September 2020. Reproduced with permission from LHAG.
The COVID-19 global pandemic has
made working from home (WFH) become more commonplace than the daily
commute to the office. Even with the gradual lifting of the movement
restrictions in Malaysia, many employers continue to encourage WFH
arrangements. There are undeniably many advantages, for employers and employees
alike, in having a WFH arrangement. Employers should, however, be aware of the
various legal issues and concerns that come with working remotely.
Confidentiality and cybersecurity
Confidentiality and cybersecurity are issues of paramount concern in every organisation. Leaking or disclosing confidential information constitutes a serious act of misconduct, even where it is unintended. In the same vein, there are severe consequences arising from an employee’s act of providing unauthorised persons with access to company property, such as by divulging his login credentials for an internal system.
WFH arrangements create room for
the unintended leakage or disclosure of confidential information by employees
and give rise to potential cybersecurity risks. An example may be where an
employee allows a family member to use his work laptop or leaves the laptop
unattended while confidential documents are left open and/or easily accessible.
Another possible scenario is where the employee does not use a secured Wi-Fi or
a virtual private network when working on the laptop, hence leaving it
vulnerable to a cyber-attack.
Considering the above situations,
employers should take steps to ensure that confidential transactions, deals or
documents are not in any way compromised by employees who are WFH. Documents
should be stored under lock and key, especially if the employee does not live
alone or if his workspace is frequented by others. Employers who provide work laptops
to employees need to regulate their use to ensure that employees always keep
them secure. Employers should also set out clear protocols for employees to
follow in the event of a cyberattack so that employees are well-equipped to
manage cybersecurity risks presented by WFH arrangements.
Health and safety
Every employer has a duty under
the law to ensure, so far as is practicable, the safety, health and welfare of
all his employees at the office. It is relatively
straightforward for employers to take such health and safety measures when
their employees are working at a place under their control. Employers, however,
do not have the same sway when it comes to an employee’s home.
Issues may arise should an
employee sustain an injury during normal working hours while WFH. Employers may
face difficulties in determining whether the injury can be classified as an
“occupational” injury if the employee had sustained it while carrying out a
non-work related activity. There should be clear instructions and procedures
for reporting work-related injuries sustained during WFH arrangements.
Employers should also be wary that
there may be a need to review existing insurance policies to ensure that their
WFH arrangement does not contravene any terms and conditions of such policies.
Time management
While WFH can boost employee
morale due to the obvious savings in costs and lower stress levels associated
with commuting, WFH may also give rise to disciplinary concerns, especially in
the aspect of time management.
WFH arrangements inevitably cause
a blurring of lines between working and non-working hours. This may lead to
employees working at irregular or erratic hours instead of their normal working
hours. Employees may even be uncontactable during working hours, leading to unnecessary
delays in completing tasks. For employees covered by the Employment Act 1955, WFH arrangements may also lead to dubious
overtime claims if not properly regulated.
Employers will need to seriously
consider effective steps to manage these disciplinary concerns arising from WFH
arrangements. This may include the implementation of appropriate mechanisms to
monitor timekeeping for employees, especially those who are entitled to
overtime claims.
Assessment of probationers and
performance
WFH arrangements present considerable challenges in assessing the performance of employees. This is especially so in regard to a probationer. It is trite law that employers need to provide a fair opportunity for a probationer to prove his suitability for permanent employment. In doing so, the employer would need to assess whether the probationer possesses the right skill, competence, temperament, aptitude, attitude and suitability.
It may not be too difficult to
monitor a probationer’s skill or competence while he is WFH. Without
face-to-face interactions, however, employers may find it challenging to assess
a probationer’s temperament and attitude having regard, inter alia, to
the organisation’s corporate culture.
Employers may need to consider how
they can reconfigure their employee performance management system, including
yearly appraisals and performance improvement plans, to cater to WFH
arrangements.
Conclusion
WFH arrangements are being
increasingly accepted as part of the “new normal” and the practice appears to
be here to stay as long as the global pandemic persists. With WFH being a
relatively new practice among Malaysian organisations, employers may find
themselves struggling to navigate through the waves of various legal issues and
concerns that may come with the implementation of WFH arrangements.
It is imperative for employers to
implement a written WFH policy to manage and address such issues and concerns
as failure to do so can have serious implications.
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