New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Employers have a general duty of safety and security, which includes a responsibility to provide a healthy and safe working environment free from hostility, and this includes employees under the home office regime.

For that reason, and due to the protective nature of local labour law, if an employee’s mental or physiological health suffers as a result of such hostility, a court may determine the employer is responsible, unless the employer provides evidence of having taken all necessary measures to address the hostility in question, in compliance with their duty of safety.

Last updated on 21/09/2021

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Australia

  • at People + Culture Strategies

Organisations must minimise any risks to workers’ mental health arising from work as far as is reasonably practicable, and this includes where an organisation’s workers are working remotely, including from home.

We note that workers also have a duty of care for their own health and safety, including while working from home, and this requires that a worker follows any reasonable policies or directions the employer gives them that pertain to worker health and safety.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

An employer's duty of care also includes looking after the mental health and well-being of employees who work from home. However, their duties are of course limited only to those aspects that arise from the work performance itself (hence no private factors). However, neither employers nor representatives of the labour inspectorate may enter a worker’s home. Therefore, employers are unable to examine working conditions during teleworking. Nevertheless, employers are still expected to ask their workers about their state of health and offer support. As mentioned above, some employers offer their employees creative solutions. However, the prerequisite is always that employees voluntarily cooperate with the measures if his or her home is affected.

Last updated on 21/09/2021

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Belgium

  • at Van Olmen & Wynant

The only provisions on the mental health of remote workers can be found in CBA No. 149. A risk analysis performed by the employer should include a psychological dimension. Remote workers should have the possibility to have a so-called psychosocial intervention or a spontaneous consultation with an occupational physician. The concept of “psychosocial intervention” originates in the Belgian Well-being Act, which introduces a chapter dedicated to the prevention of psychological risks including stress, violence, bullying and sexual harassment. A psychosocial intervention consists of a conversation with a confidante or a prevention advisor, to resolve the conflict or issue at hand.

In addition, the aforementioned obligation of employers to enhance contact between remote workers and colleagues to avoid isolation is also aimed at preserving the mental health of employees.

Last updated on 21/09/2021

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Irrespective of the workplace arrangement, employers are legally responsible for promoting a safe and healthy working environment, not only to avoid occupational diseases or accidents, but also to enable employees to work to the best of their abilities and thrive in their careers. In a broader interpretation, that would include caring for employees’ mental health and wellbeing, as this can be negatively affected by a harmful working environment – to the point of triggering work-related mental disorders such as depression and anxiety, which leads to high absenteeism rates. For those working remotely, companies must promote certain integration actions, such as periodic meetings and constant feedback, as these are likely to go unnoticed when employees are not working at the company’s premises.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Employers are liable within the limits of their obligations (see question 12). As long as employers respect these obligations, in case of litigation, it will be up to the employee to demonstrate that the deterioration of their health is related to the employer's failure to respect its obligations.

Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

In general, employers are required to take the necessary occupational safety measures, taking into account the circumstances that affect the health and safety of employees at work, even if employees are working remotely. Thus, the employer must organise the work in such a way that any hazards to mental or physical health are avoided as far as possible and any residual hazard is kept to a minimum. Necessary measures to protect employees must be planned, taking into consideration communication technology, the organization of work, other working conditions, social relationships and the influence of the environment on the workplace. Nevertheless, since mobile workers choose their workplace, employers are not directly responsible for the design of that workplace. This certainly applies where workers voluntarily choose to work on a mobile basis. However, employers must point out the possible dangers and ask the worker to take appropriate, necessary and reasonable measures to protect his or her health. The employer is also required to regularly check that those instructions have been understood and implemented.

Last updated on 21/09/2021

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

The new law s4808/2021 stresses employers’ obligation to protect the mental health of remote workers. To that end, certain provisions have been enacted to encourage a good work-life balance, including the right to disconnect and the prohibition of any retaliation measures or discriminatory behaviour against employees exercising their right to disconnect.

Employers must also prevent the isolation of employees working from home and allow them to meet with their colleagues regularly, by organising meetings so they have access to all information concerning the company.

Also, employees working from home have the same collective rights as employees working at a company's premises. Communication with employee’s representatives should not be prevented.

Last updated on 21/09/2021

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

Hong Kong has not introduced any specific employment or health and safety rules relating to remote working.

An employer’s duty to take reasonable care of its employees’ health and safety at work may extend to safeguarding its employees’ mental health and wellbeing, but there are no specific, separate obligations on employers concerning protecting employees’ mental health.

There are, however, obligations under the Disability Discrimination Ordinance not to discriminate against employees on the basis of their mental health condition (if such condition constitutes a disability), so employers should take care not directly or indirectly to treat employees with mental health conditions detrimentally, or harass or victimise them.

Although not legally required, employers should consider regularly checking in on employees who are working from home to ensure they are coping ok and not feeling isolated or overwhelmed.

Last updated on 11/10/2021

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India

  • at Nishith Desai
  • at Nishith Desai

­The Mental Healthcare Act, 2017 (MHA) outlines the rights of persons with mental illness, without specifying any entity against which such rights may be enforced. As a result, such rights of a person with mental illness under the MHA may extend against employers as well.

Some of the rights applicable to persons with mental illness under the MHA inter alia include the right to dignity, privacy, to be part of society, to be treated equally at a par with persons with physical illness in all provisions of healthcare besides other rights, and to be protected from emotional and sexual abuse. To that extent, employers should take into account such requirements in their policies, addressing inter alia non-discrimination of employees with mental illnesses in terms of the provision of healthcare-related benefits at par with persons with disabilities, protecting the confidentiality of any information related to an employee’s mental illness, and publication of any information relating to an employee’s mental illness on media with the consent of such employee.

Last updated on 18/11/2021

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Ireland

Ireland

  • at Littler

When it comes to protecting the mental health and wellbeing of workers, employers owe the same duties to employees who are working remotely as those who are not.  Employers have a duty to maintain a safe working environment, both in the workplace and when working remotely. 

Last updated on 21/09/2021

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Italy

  • at Toffoletto De Luca Tamajo

Mental health and wellbeing are also included within the general obligation for employers to safeguard employee health. This is also the case for employees working remotely.

With reference to Smart Working, Italian provisions specify that the technical and organisational measures in place for guaranteeing employee disconnection from IT tools must be provided for within the individual agreement.

While, in case of Teleworking, employers must address measures to prevent isolation of the teleworker from other employees, such as by providing opportunities to meet regularly with colleagues and to access company information.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

Specifically, NOM-035 sets forth the necessary mechanism for employees to prevent psychosocial risk factors in the workplace, promote a healthy working environment, and how to evaluate their compliance. NOM-035 must be implemented regarding both mobile workers and workers based primarily at home.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Since the pandemic, the mental health of employees, who have been mostly working remotely for two years, appears to be under more pressure compared to pre-pandemic times. Burnouts are looming because employees who work remotely are more likely to be constantly on-call and to work overtime.

Based on article 3 paragraph 2 of the Working Conditions Act, employers have an obligation to have a policy in place aimed at preventing and – if that is not possible – limiting the PSA. This also concerns workers who are working remotely.

Employers must take the relevant measures in this regard based on the risk inventory and evaluation (RI&E) performed and must establish and implement a plan of action to prevent or limit the PSA of its employees. Employers are also obliged to provide information and instructions to employees who are working remotely on the risks of PSA and the measures taken to prevent and reduce such risks. It is also recommended that employers should regularly monitor the functioning of the remote worker and his or her “well-being”.

If an employer does not comply with the aforementioned duty of care, this could eventually lead to The Netherlands Labour Authority imposing administrative fines. In addition, the employer could – in certain circumstances – be held liable for any health (including mental health) damages suffered by employees pursuant to article 7:658 paragraph 1 DCC.

Furthermore, insufficient care for the PSA can create obstacles to granti a request to dismiss an employee based on underperformance (article 7:669 paragraph 3(d) DCC), as this would require that the inadequate performance may not be the result of insufficient care on the part of the employer for the working conditions or training of the employee. In addition, a higher fair compensation (billijke vergoeding) could be granted by a court in case the insufficient care for the PSA of the employee is deemed a seriously culpable act of the employer.

Last updated on 08/03/2022

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Poland

  • at Bird & Bird
  • at Bird & Bird

There are no specific regulations in this regard. Soft recommendations of monitoring the wellbeing of remote-working employees regarding their personal welfare, mental and physical health, and personal security should be considered.

In addition, an employer’s universal duties related to ensuring a safe working environment free from discrimination, bullying, harassment and other unlawful behaviour also apply to remote workers.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

According to the Portuguese Labour Code, employers must provide good working conditions, both physical and mental. Health obligations should be understood holistically, encompassing both mental and physical health and wellbeing. Since these obligations apply to employers regardless of the type of employment relationship, they will also include teleworking and remote-working employees.

In practical terms, this implies that, when the health and safety services assess risks, they will identify and analyse those specific to the circumstance of not working onsite, such as stress, fatigue or sedentariness.

Last updated on 21/09/2021

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Qatar

  • at Clyde & Co
  • at Clyde & Co

Employers have a general duty to protect or maintain the health and safety of their employees in the workplace, which includes mental health. The Qatar Ministry of Administrative Development, Labour and Social Affairs (MADLSA) guidelines regarding remote working issued in April 2020 also provide that employers should devise strategies to support the health and safety of employees working remotely and their mental health.

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Employers have a general duty to protect or maintain the health and safety of their employees in the workplace, which includes mental health.

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Employers may be responsible for mental health and wellbeing, and this is an issue on which the Labour Inspectorate’s focus is increasing considerably.

This responsibility would mainly depend on the actions the employer takes (and can prove), in particular, implementing a risk-assessment and prevention activity plan (including information and training sessions) and certain policies and their implementation.

In other words, companies should act proactively to prevent situations that may harm employees’ mental health.

If employers can prove they have complied with these obligations, the risk of being responsible for remote workers’ mental health and wellbeing decreases significantly.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

An employer’s systematic management shall include both psychological and social circumstances that have an impact on the work environment. This also means a general obligation to regularly assess working conditions and to be attentive to employees’ wellbeing. Managers and workers with supervisory functions shall be aware, in the day-to-day business, of warning signals indicating mental health issues, such as increased absences from work, silence and fatigue at work or high activity on email or the telephone outside working hours.

Last updated on 24/01/2022

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Switzerland

  • at Lenz & Staehelin

Employers are responsible for the health and well-being of employees, including their mental health. However, Swiss law does not provide a general definition of the protection of mental health. In any case, employers cannot be indifferent to the mental health of their employees. They have a duty to help, to reduce tensions, resolve relational conflicts, prevent harassment and protect employees from rumours and bullying. Wherever possible, employers must accommodate employees whose mental health is at risk so that they can continue to work, (eg, by moving the employees' workplace).

These obligations also apply to remote working.

Last updated on 30/09/2021

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

As mentioned above, employers must take all necessary occupational health and safety measures and protect employees’ health, and physical and mental integrity. Also, according to article 417 of the Turkish Code of Obligations, employers must have all necessary equipment and tools available to protect health and safety.

The same article further provides that employers must: protect and respect the personality of their employees; ensure order in the workplace in compliance with the principle of good faith; and take any necessary measures to prevent employees from being exposed to psychological and sexual harassment and from being subject to further harm, if such an incident took place.

Last updated on 21/09/2021

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UAE

  • at Clyde & Co
  • at Clyde & Co

Employers have a general duty to protect or maintain the health and safety of their employees in the workplace, which includes mental health.

Last updated on 08/11/2021

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United Kingdom

  • at Littler

When it comes to protecting the mental health and wellbeing of workers, employers owe the same duties to employees who are working remotely as to those who are not.  Employers have a duty to maintain a safe working environment, both in the workplace and when working remotely. 

The HSE has issued guidance on mental health issues in the workplace generally – see here – and stress has also been identified as an issue that may particularly affect home workers (see here).

ACAS has also issued guidance on managing the mental health of workers during the pandemic: see here.

Last updated on 13/01/2022

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United States

  • at Littler
  • at Littler
  • at Littler

This is not an area that has been a priority in the United States, particularly if the employees are remote. However, this will likely be a developing area in the future that employers will have to consider in light of the changes being brought about by the pandemic.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021