The outbreak of the COVID-19 pandemic has seen most businesses, except for essential services, asking their employees to work from home, in an effort to practise social distancing and lessen the impact of the virus. The trend of working from home has been gaining momentum since the outbreak, and many employees are likely  to continue working home after the pandemic, and this might even become the new norm.


The key questions are whether a person’s home becomes a “workplace” if an employee performs his/her services from home as the answer will have significant consequences under the Health and Safety regulations, and specifically for purposes of compensation for occupational injuries and diseases.


What constitutes a workplace?

The term “workplace” is defined in Section 1 of the Occupational Health and Safety Act to mean “… any premises or place where a person performs work in the course of his employment”.

It is clear from this portion of the definition that if an employee performing work at his/her place of residence for an employer, that place will constitute a workplace in terms of the definition as the employee will be acting in the course and scope of their employment. Therefore, a home office space will suffice the definition, and the employer will have to make the necessary arrangements to keep the employee safe.


A subsequent question raised is whether or not an injury (or illness) of an employee working from home will constitute an Injury (or illness) on duty in terms of the Compensation for Occupational Diseases and Injuries Act (COIDA). In the current context, the question could be rephrased to be “whether an employee that works from home (or from the office) when infected with the Covid 19 virus, will be covered by COIDA and eligible to claim from the compensation fund?

The short answer to this question is “Yes”, but only insofar the illness (or injury) is deemed to have arisen out of and in the course of the employment of an employee notwithstanding that the employee was at the time of contracting the illness or sustaining the injury acting contrary to any law applicable to his/her employment or to any order by or on behalf of his/her employer.


In support of this, the Compensation Commissioner has issued the Notice on Compensation for Occupationally-Acquired Novel Corona Virus Disease (COVID 19) to clarify the position of the Compensation Fund with regards to occupationally-acquired Covid 19. To qualify for benefits from the Compensation Fund, the following criteria must be met:

  1. the diagnosis must be as a result of occupational exposure to a known source of Covid 19;
  2. the Covid 19 must be diagnosed as per the World Health Organisation guidelines;
  3. the Covid 19 diagnosis must be linked to an approved official trip and travel history to high-risk areas or countries on a work assignment or linked to a presumed high-risk work environment where transmission of Covid-19 is inherently prevalent; and
  4. a chronological sequence must exist between the work exposure and the development of Covid-19 symptoms.


The employer’s responsibility when employees are working from home are contained in the OHSA in section 8, and provides for the general duties of employers to their employees in terms of which it will be expected from every employer to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.


Furthermore, it will be expected of every employer to provide such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees as well as enforcing such measures that may be in the interest of the health and safety of the employees.


Easy ways in which employers can make sure that employees are safe at home are to make sure that employees have the proper sanitisers, masks, gloves and any other PPE equipment at hand that may be necessary to keep employees safe and that the employees are given proper guidelines and training on how to work from home. It may even be advisable to draft a work-from-home-policy in order to regulate the behaviour of the employees and to mitigate any claims that may arise.


Employers can also inspect the home offices of the employees to make sure that the necessary compliance is adhered to. Employers can even get employees to confirm that their workplaces are safe in writing or even get their employees to sign an indemnity form in order to indemnify the employer against any claims that may arise.


What seems to be clear from all of the above is that it is clear that an employer does have a duty to ensure the safety of its employees even when they are working from home, and that should an employee get ill or contract the Covid 19 disease, the employer may be held liable if proper precautions as set out in this article are not taken.