Work injury compensation in the era of remote stations


When you think of worker compensation you might assume it only applies to injuries that occur in the traditional workplace. PHOTO | SHUTTERSTOCK

When you think of worker compensation you might assume it only applies to injuries that occur in the traditional workplace.

However, this is not always the case, especially in the post-Covid era that has changed the way we work. In fact, the number of people working remotely has drastically increased between 2019 to date.

So, the question is: Can you get a worker compensated for a work-from-home injury? The short answer is yes. As an employee, you are entitled to the same rights as an employee working in an office during your assigned working hours. However, this is not as straightforward as it sounds and each case needs to be assessed on its own merits.

Here are some of the common situations we have encountered in this area.

Who is the occupier in a work-from-home arrangement?

The Occupational Safety and Health Act (OSHA) defines an Occupier as “the person or persons in actual occupation of a workplace, whether as the owner or not and includes an employer.”

From the definition, the occupier could either mean the employer or the person receiving the rent or profits from that premises, namely the landlord.

So, who then is an occupier in a work-from-home arrangement? Is it the employer or landlord? These are some of the difficult questions that have to be answered and which our current legal framework does not expressly provide answers for.

Employment law

This question might elicit different responses depending on the context.

However, in an employment law context, the employee would have to prove that the employer is the occupier and, as such, has certain duties towards ensuring that the employee has a safe working environment.

Injured while working from home: OSHA defines a workplace as including “…any land, premises, location, vessel or thing, at, in, upon, or near which, a worker is, in the course of employment.”

This definition implies that what matters is not the location but whether the worker is “in the course of employment”.

It, therefore, occurs that even remote workers are entitled to compensation for workplace injuries.

However, as compared to an employee who sustained the injury at the traditional workplace, for remote workers, claims might be challenged on various grounds depending on the peculiarity of each situation.

What matters is that the parties involved should seek legal advice to understand whether a valid claim arises in each situation.

Does the employer have a duty to ensure remote workstations are up to standard?

Section 6(1) of OSHA provides that “Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace”

Further, Section 6(2)(e) of OSHA provides the occupier (employer) with a duty to ensure that the working environment for every person employed is safe, has no health risks and is adequate as regards facilities and arrangements for the employee’s welfare at work.

From the earlier interpretation of the workplace, in a claim for compensation for work injury, the employee would have to prove that the remote workstation qualifies as a workplace and that the employer’s duty extends to that station.

Does the employer have a duty to conduct risk assessments of the remote workstations?

Section 6(3) of OSHA mandates the occupier to carry out appropriate risk assessments in relation to the safety and health of persons employed and adopt preventive and protective measures to ensure that under all conditions of their intended use under the control of the occupier are safe and without risk to health.

The conditions should comply with the requirements of safety and health provisions in the Act.

Non-compliance with the above provision would amount to an offence with the employer risking a fine of Sh500,000, imprisonment for six months or both.

The main question that arises is whether employers with work-from-home arrangements with their employees would have to conduct regular risk assessments of the remote stations to ensure compliance and avoid liability for claims arising from unsafe working environments.

This is an area that should be addressed in the current legal framework.

Countries such as Mauritius have developed the Workers’ Rights (Working from Home) Regulations 2020 that have provided, among others, definitions of key terms such as home and work from home.

The regulations have eliminated a lot of confusion and in the process ensured that the employer complies easily and the employee’s rights are protected adequately.

It will be interesting to see the legal changes that will be initiated to ensure that the law is reflective of the changes that are been witnessed in the workplace.

Will Kenya come up with regulations to cover remote work? Well, in the digital era this is a conversation that we all need to have.

The writer is an advocate of the High Court of Kenya.

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