Remote work order – the employer’s duties and responsibilities

In recent days, Oslo, Lillestrøm and Lørenskog have tightened local regulations to prevent the spread of COVID-19. One extremely relevant point of the regulations now is the remote work order. We explain the new rules and what employers have a duty to do.

Lillestrøm and Lørenskog have followed Oslo on the remote work order

The City Council of Oslo has passed an order for remote work for workplaces in the municipality of Oslo. The order entered into force on 29 October at 12:00. Section 5 of the Regulations on the prevention of COVID-19 infections, Oslo, states:

Where practically possible, employers must ensure that employees work from home. Employers must be able to document that employees have been furnished with information about how this will be implemented within the business.

      In addition, national rules and guidelines concerning infection control in workplaces, meetings and courses, seminars, etc. also apply” (emphasis ours).

The regulations apply to employers based in the municipality of Oslo. The City Council has justified the tightening of the rules through the current knowledge of the main sources of infection. Among these, infection at the workplace and when travelling are highlighted. Remote work is considered a key measure in limiting mobility in society and reducing the use of public transport.

Similar orders concerning remote work have now been introduced in the municipalities of Lillestrøm and Lørenskog. Additionally, certain other municipalities have passed local regulations concerning remote work and meeting activities. Nevertheless, none of these go as far as Oslo, Lillestrøm and Lørenskog.

We will therefore provide a brief explanation of the COVID-19 Regulations as viewed by the municipalities below. However, please be aware that the COVID-19 Regulations raise questions concerning how restrictive measures directed at individuals can be. This “legal basis” issue has not been not discussed.

Assessment of what is “practically possible”

The provisions concerning remote work are directed at employers. Employers are now responsible for assessing what is “practically possible” in order for work to be performed remotely at each employee’s “home office”.

When assessing whether it is “practically possible” for employees to work remotely, both the home conditions and work activities of the employee must be considered specifically.

Little is said about the investigations employers must conduct at the employee’s place of residence. However, according to the municipality of Oslo, both the employer and the employee must accept that remote working is both impractical and less optimal. The threshold to be able to work at your place of work is now extremely high, according to the wording of the regulations. The municipalities of Lillestrøm and Lørenskog must also be expected to adhere to this understanding.

Employers must enter into dialogue with each employee. There will be major individual differences in what different employees deem acceptable working conditions when working remotely, without being at risk of incurring ailments or experiencing exacerbation of existing ailments.

For extended periods of remote working, please also remember the regulations relating to work performed at the employee’s home. The regulations set out requirements concerning the working environment and there are also requirements for the employee to contribute to the implementation of measures to create a safe and healthy working environment, cf. Section 3. Nevertheless, the regulations do not apply to “short-term or casual work,” cf. Section 1. The remote work scheme is intended to be temporary and can currently be viewed as “short-term”. The provisions set down in the Working Environment Act therefore apply to the remote work situation.

If there is a need for adaptations and facilitation of the nature of the work activities, it may be relevant to assess how far the employer’s management prerogative extends here.

The municipality has not yet said anything about how thorough the investigations performed by employers must be for this assessment. Regardless of what the municipalities may believe, it is clear that employers must respect employees’ private space. The investigations must therefore be based on dialogue and voluntary information provided by the employee.

Further details concerning the employer’s duties

The employer has a duty to inform employees about specific procedures and systems applicable to remote work in their business. Documentation of messages to employees must be presented in the event of an inspection by the municipality. Both e-mails to employees and intranet pages are considered adequate documentation for the purposes of an inspection.

At a time when social activities are extremely limited, it is important that the employer is aware of its responsibilities pursuant to Section 3-1 of the Working Environment Act relating to systematic HSE work. The provisions will apply also when employees work remotely. Pursuant to the Working Environment Act, the employer is obliged to collaborate with employees and their elected representatives concerning HSE in the workplace. Particularly relevant to the current situation is clarity concerning the allocation of responsibilities associated with activities and work linked to HSE and the prevention and follow-up of sick leave. Please refer to Section 3-1(2) b and f of the Working Environment Act. Measures such as telephone meetings, video meetings and shared lunch breaks via various media platforms can be positive measures in managing the employer’s obligations. It will also be appropriate to ensure closer individual follow-up of employee activities and progress in order to obtain adequate information concerning working conditions and any challenges.

In addition the Working Environment Act’s rules on HSE, the employer must be aware of Chapter 4 of the Working Environment Act relating to requirements concerning the working environment. Section 4-3(2) of the Working Environment Act states:

“… efforts shall be made to arrange the work so as to enable contact and communication with other employees of the undertaking.”

In the legislative history for Section 4-3(2) of the Working Environment Act, it has been emphasised that the provision must prevent isolation. If the remote work situation is extended, isolation considerations must be assessed against “practically possible” in the COVID-19 Regulations. In other words, an employee cannot be isolated for so long that it constitutes a risk of violation of the duty pursuant to Section 4-3(2) of the Working Environment Act. How the two sets of rules will be harmonised could pose challenges and must be specifically assessed.

The employer has a duty to ensure that the necessary equipment is available for the employee to work remotely. Here, there may be special considerations linked to employees with disabilities, cf. Section 4-1(5) of the Working Environment Act. Section 4-4 of the Working Environment Act also requires the physical working environment, including e.g. “indoor climate, lighting, noise, radiation and the like” to be fully satisfactory. Such environmental conditions can be challenging to test in connection with the use of remote work. Requirements are also set out concerning special adaptations for employees with disabilities, cf. Section 4-6.

It is not clear how far employers’ adaptation duties extend under the Working Environment Act while the remote work scheme is intended to be temporary.

Each business should establish its guidelines for remote work on the basis of the current infection control measures to ensure proper compliance with what is “practically possible” under a remote work order. An assessment of other legal requirements linked to employees’ working conditions applicable in connection with remote work should also be conducted. The employer should be able to document its assessments.

Consequences of violations of the regulations

Failure to comply with local COVID-19 regulations carries a risk of being fined, cf. Section 8-1 of the Infection Control Act. Fines could also be issued if an employer becomes aware of gross breach of duty on the part of employees without following up on the matter.

The term employer in connection with a remote work order

The COVID-19 Regulations mean that a significant responsibility for infection control measures is imposed on employers in the municipalities that apply local regulations. The wording of the regulations is aimed at employees only.

Section 1-8 of the Working Environment Act defines the term employee as “anyone who performs work in the service of another”.

One question that arises is how the obligations under the COVID-19 Regulations must be managed in businesses where it is not possible to distinguish between the employer and the employee. Someone who receives an ordinary salary through their own limited company will be considered an employee and must work remotely to the extent practically possible. On the other hand, someone who works as a sole proprietorship will be able to work from their office as normal. The same applies to participants in companies that fall under the Company Act, such as ANS and DA.