From a Lawyer’s Perspective
This is a guest post written by Sarah Bartholomeusz from YouLegal.
The current global health pandemic has rocked our world in more ways than one. As a result, many doctors have been forced to quickly pivot to at least a certain amount of remote work. While in Australia it appears that we are on the tailend of COVID-19, even beyond the pandemic it is likely that many doctors will continue to do at least some of their consultations remotely.
This said, I’ve put together a checklist (below) to help doctors get up to speed on the do’s and don’ts, rights and wrongs, and risks and rewards when working from home.
What is remote work?
As a lawyer, I can’t help myself but start with definitions. The main reason being is that being a ‘remote’ worker isn’t just something we tell our colleagues. It’s what we are required to tell our employers, the tax department, and many more.
So what is remote work? Remote work is an arrangement in which an employee has a formal agreement with an employer to work in a location other than the office, usually a home office.
Is remote work legal?
Yes. The right to request for flexible working arrangements exists in accordance with the Fair Work Act 2009 (FW Act) and has long been recognised in Australia. There are some conditions and qualifications that are usually required to be met before an employee can commence working remotely and this does not apply to every industry.
Does workplace health and safety apply to remote work?
Every person who conducts a business or undertaking (defined as a PCBU under WHS laws) has a duty to ensure the health and safety of workers and others at the workplace (so far as is reasonably practicable).
Individual workers also have a duty at work under WHS laws to exercise care for their own health and safety and not adversely affect the health and safety of others.
The obligations for workplace health and safety apply to employers and employees equally when they are working remotely (not just in the workplace). Employers have the primary responsibility to do what is reasonably practicable to ensure the health and safety of their workers. This includes those who are working remotely. Although, employees must also follow health and safety policies and procedures to the best of their ability. It is a shared responsibility.
It’s worth noting that unexpected incidents can happen when working from home, that may never have happened if the employee was working from the office. For example, falling down the stairs due to wearing socks on the tiles; tripping on Lego left on the floor by the kiddos; or slipping in the laundry when trying to wash clothes and maintain a telephone conversation.
Addressing how workplace health and safety applies in the home in a Policy and having someone independent review the workspace are ways for employers to manage these risks.
How does patient privacy and confidentiality fit in?
For general practices, securing private and confidential information is one of the highest priorities in the transition to remote work for employees. The practice obligations with respect to privacy and confidentiality exist regardless of where the work is taking place. These are obligations that doctors should take extremely seriously.
Regardless of turnover, a practice is an APP entity, meaning that they are bound to treat the information in accordance with privacy standards set out in Australian Privacy Principles (APPs). If there is a breach of private information, there are steps that must be taken in relation to mandatory notification. Breaches are often more likely to occur if care and thought has not been put into how a remote work policy might be applied to the practice.
A breach could also occur if a doctor’s laptop is left open and a visitor to the house sees a patient’s personal information. The same is true if information is put onto a USB and accidentally dropped at the supermarket. This could set off a chain of events involving the Privacy Commissioner that you never envisioned before remote working commenced.
Is it worth the risks?
Managing and mitigating risk is something that doctors do for their patients every day. As you can see working remotely has its pros and cons, especially when it comes to the workplace, health and safety, and patient privacy and confidentiality.
It can take time to think about how the arrangement will work but I can guarantee that it will be time well spent. Creating a Policy framework will give your practice the best chance of success in embracing remote work and can also help instill trust and confidence in the team.
The checklist below will also help you better equip your doctors and practice for remote work.
If you need more help you can reach me at email@example.com.
Founder and Principal, You Legal
Sarah Bartholomeusz is the Founder and Principal of award-winning commercial law firm, You Legal. You Legal helps doctors legally protect their practice, patients and profits. She has over 15 years’ experience as a lawyer, an active practice in corporate and commercial law. Sarah is passionate about working with practice managers and owners to minimise their risks and maximise their potential. She is also a TEDx speaker, the Chair of the Catalyst Foundation board, and the author of three books on governance.