Although the Work Where You Want Act was rejected by the Senate, research by CBS shows that—even without this law—as many as 52% of all working people in the Netherlands regularly worked from home in 2023. Under Dutch health and safety legislation, employers must ensure a safe and healthy working environment, including an employee’s home office. But: which health and safety legislation actually applies? How can an employer supervise the workplace, given that they are not allowed to simply enter the home? And what about privacy? These are the questions we address in this article.
Applicable health and safety legislation
The employer’s duty of care is based on the Working Conditions Act, the Working Conditions Decree, and the Dutch Civil Code (Article 7:658). This means, among other things, that the employer has the responsibility to ensure that the home office is furnished in an ergonomically sound manner. However, when the employee works from home, a ‘lightened’ health and safety regime applies. For instance, the employer does not have to provide escape routes, changing rooms, and toilets for the employee working from home. An employer would benefit from finding out from their employees what work equipment they already have at home for their workplace and what, if anything, is still missing.
In addition to ensuring an ergonomically designed home workplace, the employer should implement policies aimed at limiting the psychosocial workload. This includes ensuring that the employer keeps the workload within acceptable limits. It can be challenging for employers to anticipate this in time. Having regular personal contact between the employer and the employee is important in this regard. Organizing weekly team meetings in which the workload is discussed, for example, can help with this.
Monitoring compliance with applicable health and safety legislation
Employers are thus faced with the challenge of ensuring a safe and healthy working environment, even within the walls of their employees’ homes, in accordance with the applicable health and safety legislation. However, fulfilling this responsibility is hampered by the fact that employers cannot be physically present to check daily, for example, whether the office chair is properly adjusted or if employees are taking sufficient breaks. But what can you do as an employer?
In practice:
- employers often engage ergonomic consultants, who, in consultation with the employee, visit them to assist with setting up their workplace (live or via video call); and
- some employers work with a checklist that they have employees sign, which includes the various components of an ergonomic workplace.
With regard to limiting the psychosocial workload, it is important for an employer to make agreements with their employees on their (in)accessibility for the employer, colleagues, clients, and other relations of the employer. In doing so, it is advisable in most organizations to limit accessibility to regular working hours. Employers can also consider a registration requirement for the employee to track and report actual hours worked.
Privacy laws as a limit to surveillance
Privacy laws may limit the method of monitoring, as monitoring employees who work from home may infringe on their privacy. Therefore, strict conditions are in place here. In short, the use of software to monitor the ergonomic home workplace and reduce the psychosocial workload will typically result in the processing of personal data. In accordance with the GDPR:
- The employer is obliged to inform the employee about how this data is processed. In practice, this is often done through a general privacy notice or information letter;
- In addition, the employer’s interest and purpose in violating privacy must outweigh the employee’s interest;
- Finally, the objective pursued must not be achievable in a less intrusive way. This means that control must be necessary.
To summarize
With working from home being a growing trend, employers’ responsibility to comply with health and safety legislation is in the spotlight. This includes, but is not limited to, providing ergonomic facilities and controlling the psychosocial workload.
In daily practice, employers take various measures to maintain ergonomic standards. In doing so, they often engage ergonomic consultants and use checklists. Another possibility is to conclude agreements with employees on availability or to require registration of hours worked (subject to privacy rules, of course).
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