Kai Villemson: Remote work has new amendments to consider
Remote work is becoming more popular in Estonia every year. In 2021 approximately 181,600 people used the option to work remotely, according to Statistics Estonia. But it wasn´t until November 2022, when the amendments to the Occupational Health and Safety Act took effect, that the legal uncertainties in the organisation of remote work were eliminated. According to the latest amendments, employers are now bound by specific provisions applicable to remote work and must ensure compliance with the requirements set forth in the Occupational Health and Safety Act, writes Kai Villemson.
Remote work should only be allowed after conducting a risk analysis
The amended Occupational Health and Safety Act now explicitly requires employers to conduct a risk analysis of a remote workplace. The risk analysis must identify any hazards in the working environment and assess the risks to the employee’s health and safety. Identified risks must be reflected in the risk analysis action plan and communicated to the employee with instructions on how to prevent or mitigate the risks.
The employer should either prepare a risk analysis questionnaire or alternatively carry out an on-site risk analysis. Risks related to remote work may be addressed in a generalised way in the risk analysis. If a questionnaire is used, the employee will provide an overview of their working conditions and working environment, and the employer usually cannot objectively assess the risks associated with the remote workplace.
When conducting an on-site risk analysis, it is important to remember that the employee has the right to the privacy of their home, meaning that the employee’s written consent is required for an on-site check. The employer’s request to carry out an on-site risk analysis must be substantiated. Above all, the employer and employee must come to an understanding on how the employer can check the conditions and possible risks at the remote workplace.
Having identified the risks associated with the remote workplace, the employer must instruct the employee before allowing them to work remotely. This concerns both - the hazards of the remote workplace as well as their potential impact on the employee’s health. Therefore, the employer must also instruct the employee regarding, for example, correct working positions and safety requirements for tools, regardless of the fact that the employee works remotely.
The employer must ensure the employee can independently identify the hazards related to the remote workplace and mitigate any risks. Instructing the employee is not a one-time obligation; the employer must instruct the employee regarding the risks and hazards as often as needed.
What should be kept in mind when signing an agreement?
Merely conducting a risk analysis and instructing the employee on the risks is not enough before allowing an employee to work remotely. While employees have the right to request flexible working conditions, which may include the possibility of remote work, the parties must reach an agreement to allow the employee to work remotely. The employer and employee must then sign a written remote work agreement.
The agreement must specify the place of remote work. This is important due to the growing trend of working remotely in various locations not specified in the remote work agreement. However, even if the parties have agreed that the employee may work remotely in a cafe, on a long-distance bus or abroad, the obligations arising from the Occupational Health and Safety Act might still be all applicable.
When a person works abroad, the employer must pay attention to, among other things, the taxation aspects of the country where the work is performed, as local taxes may apply to the employee during a long-term stay abroad. It is equally important to agree on the permissibility of overtime, working hours, and the procedure for recording working time and observing confidentiality.
Among other aspects, the agreement must specify when and how the employee is to inform the employer about the significant changes in the working conditions or environment covered by the risk analysis. The fine on a legal entity for a non-compliant working environment is up to 32,000 euros.
The employer must also provide employees guidance on creating a safe remote work environment. To achieve this, the parties may agree on the employer covering the costs of furnishing the remote workplace or other costs. Costs borne by the employer that are not essentially work-related, may count as fringe benefits. Therefore, the equipment and furnishings required for working in a home office should be intended only for work-related tasks. Otherwise, the employer could be subject to higher taxes.
To sum up, many aspects of a remote work agreement require attention. Although the employee’s occupational health and safety obligations do not generally release the employer from the relevant liability, however, the employer’s liability can be in certain cases be limited. In the long term, given the popularity of remote work, every employer should have a clear action plan for implementing remote work in their company and the parties should always reach an agreement covering the essential aspects of remote work before the commencement of remote work.
Kai Villemson is an attorney with extensive international experience specialising in contract law, dispute resolution and consulting the technology sector.
Kai is one of the few legal experts in Estonia who have obtained a professional certificate in the United States equivalent to a sworn advocate.
Kai has practised as a lawyer in various law firms in the United States for more than 5 years, become a member of the New Jersey Bar Association, and has also served as a law clerk at the Superior Court of New Jersey in Camden.