Balancing Flexible Work Policies & Employer Safety Obligations: A Challenging Dilemma?
Since the Covid-19 pandemic, working from home has become a familiar concept. Among younger employees, particularly Gen Z, flexible working arrangements (FWA) are increasingly seen as a standard expectation. These arrangements have evolved from working at home to working from virtually anywhere.
But how does Malaysian employment law address these expectations? Recognizing the shift in workplace dynamics, amendments were made to the Employment Act 1955 when Sections 60P and 60Q were introduced. This amendments were effective from and it was effective from 1 January 2023. These sections grant employees the right to request FWA in writing, allowing them to change their working hours, days, or locations.
It’s important to note that while employees can make such requests, FWA is not an absolute right. Employers can refuse them but must provide written reasons within 60 days of the request.
While FWAs may be the latest trend in workplace flexibility, it’s important not to overlook the associated legal considerations. One such consideration is whether FWA extends the employer’s obligation under the Occupational Safety and Health Act 1994 to ensure a safe and conducive workplace for its employees, even if the employees are not working from the employer’s premises but remotely.
It is unlikely employers can absolve themselves from this statutory duty. Currently, there are no guidelines issued by DOSH or the Ministry of Human Resources setting out the health and safety requirements to be complied with within an FWA.
An employer's duty under OSHA to ensure employee safety, health, and welfare is not absolute. Instead, the duty is to the extent that is "practicable," considering factors like the severity of risks, available knowledge and solutions, suitability of measures, and cost-effectiveness of mitigating hazards.
Given the uncertainty, companies are encouraged to develop a specific WFH health and safety policy as part of their general FWA policy. Some of the considerations to consider include:
1) Workspace Assessments: Conduct physical or virtual risk assessments or provide employees with self-assessment guidelines, considering factors like ventilation, lighting, and electrical safety.
2) Risk Mitigation: Share identified risks and mitigation measures with employees.
3) Employee Confirmation: Require employees to confirm they have a safe, designated workspace at home.
4) Support Channels: Provide contact details for HR or IT personnel for assistance with workspace setup or equipment needs.
5) Regular Communication: Maintain consistent engagement with employees to monitor adherence to health and safety guidelines.
END NOTE
Flexible working is not just a perk. It has now become an essential benefit in modern workplace culture. Though having a formal Flexible Working Policy is not mandatory, it is a recommended best practice as it provides clear guidelines for both employers and employees. Companies must adapt thoughtfully, ensuring compliance with legal obligations while embracing this evolving work style.