Working from home – not just at Covid-19 times

Working from home – not just at Covid-19 times

Doron Afik, Esq.
February 5, 2022

Some time ago I heard about a high-tech programmer, maybe a genius but surely a criminal, who during the CoVid-19 period "worked from home" in a number of full-time jobs. None of the employers knew, of course, that at the same time the same employee was working "full time" elsewhere. This work format raises significant issues from the field of labor law, but not only, which should be carefully considered when hiring remote workers, including the ability to supervise.

Supervision is not the only problem. An employee working from home is exposed not only to disruptions, insofar as the employee does not have a "sterile" work environment, but the employee and the equipment received from the employer may also be exposed to dangers that do not exist in the office work environment. As an example, in April 2021, a case was discussed in the Tel Aviv Labor Court of a self-employed person who converted a room next to her bedroom into a small office where she performed her work. When she slipped on a wet floor, The National Social Security Agency refused to recognize the incident as a work accident, in part because of the difficulty of showing that the accident was work-related and not a normal home accident. In that case, the court accepted the employee's version that she fell when she got up to bring her cell phone for work purposes and recognized the incident as a work accident. When employing employees, it is important to make sure that the business insurance also covers such a case, not only in relation to the employee's injury but also in relation to cyber insurance (if the employee connects remotely to the office) and insurance on equipment provided to the employee.

Another interesting issue is a situation where an employee refuses to continue working unless allowed to work from home. Such a situation often happens when it comes to working mothers, who after giving birth wish to do hybrid work or full-time work from home. Is the employer's refusal of such an option considered dismissal? In a verdict of January, 2022, an employee who went on maternity leave demanded, before returning to work, to work from home but her demand was denied. The Court refused to recognize this as dismissal and dismissed the employee's claim.
At the end of 2021, a bill was placed on the Knesset table (similar to a proposal submitted a year earlier and was not promoted) according to which an employer would be bound by a different agreement in the case of “long-distance work”, and special rules would apply, for example to ensure non-invasion of privacy by physical or electronic surveillance . The issue of supervision of the employee's work is a very essential issue in work from home, which is important to be explicitly clarified in the employment agreement. While the Labor Court recognized in 2020 the right to track employees through technological means of locating a vehicle location and driving style, it was also determined that the surveillance method should honor the employee's right to privacy, similarly to the fact that the court recognized an employee's privacy right in an e-mail box used for both private and use the job.

Thus, it is extremely important that the employment agreements in general, but certainly the employment agreements of employees working remotely, be prepared by lawyers with experience in the field who will ensure protection of the employee's rights on the one hand, but also protection of the employer's rights.