New regulations regarding work from home

Since the current administrative regulations regarding work from home were introduced in 2002, there have been significant social and technological changes in our society. These changes, in combination with the consequences of - and experiences following- the pandemic, have led to changes in the extent to which employees work from home and how employees work from home. On this background, the Norwegian government has introduced administrative regulations regarding work from home, which will come into force on the 1st of July 2022. Below, we will give an overview of the main points in the new regulations.

In summary, the changes to the administrative regulations will entail the following changes: 

• A clarification on when the administrative regulations will apply. 
• How to enter into an agreement with the employee concerning work from home
• Changes to the working hours regulations
• A clarification concerning the employer’s responsibility for a fully satisfactory working environment, that includes the employees’ psychosocial work environment,
• The Labor Inspection Authority (the LIA) is granted a regulatory/supervisory authority. 

When do the administrative regulations apply 

The current administrative regulation concerning work from home, applies to work which is neither brief nor occasional, and which is performed from the employee’s place of residence. The amended regulation now states that it does not apply to work which is either brief or sporadic, and which is performed from the employee’s place of residence. This is a mere clarification, and is not to be considered as a significant change to the current legislation.

Brief work entails the following: 

• Working from home for a few days
• One to two weeks of working from home, i.e. because of the employees special needs in connection with a broken foot.
• Working full time from the office for a month or more, can normally not be considered “brief”. 

Sporadic work entails the following: 

• When the employee sometimes brings home and performs a few hours of work.
• Working from home less than one day per week.
• Working from home one full day a week as a permanent solution, will not be considered as sporadic work.

The deciding factor for whether the work should be considered sporadic is an assessment of the scope of the work from home, and whether the work is performed at home on a frequent or regular basis. If the work is neither brief nor sporadic, the employer must adhere to the administrative regulations.

Finally, a practical question has been raised for other remote work such as from the employees cabin, on the commute to work. The regulations only apply to work performed from the employee’s place of residence. For other kinds of work not performed at the office, the ordinary provisions of the Working Environment Act (WEA) applies.

Is there a requirement of an agreement in writing?

Yes, there is still an obligation to enter into a home office agreement between the employer and the employee under the new regulations. The agreement must most importantly include the extent of the work which is to be performed from home, as well as the working hours and the expected duration of the arrangement.

If home office is imposed or recommended by the authorities, such as we experienced during the pandemic, an agreement is, however, not required. The employer may in these situations give information in writing about the above mentioned subjects. However, the employer is required to consult with the employee’s elected representatives before the information is given. 

Do the WEA’s working hours regulations apply? 

The former regulation made significant exceptions from the working hour regulations under the WEA. Under the new regulations, the sections which sets out exemptions from the most important working hours regulations under the WEA are repealed. 

This means that  from the 1st of July 2022, the WEA’s working hours regulations will apply to work performed from home. Thus, the same regulations apply whether the work is performed at the office or whether it is performed at home. 

The employer’s responsibility for a fully satisfactory working environment

Although the work is performed from home, the employer has a responsibility to ensure that the working environment is fully satisfactory to the extent that this is practically achievable. The amended regulations clarify that this duty extends to the duty to ensure that the mental health environment of the employee is satisfactory. 

In order to satisfy the requirement of a fully satisfactory work environment with regard to the employee’s mental health, it is important that the employer enables the employee to meet and communicate with his or her colleagues. It is further important that the health-, environment- and safety routines take into account the home office arrangement.

Who is the supervisory authority? 

Under the current regulation the LIA can only give guidance concerning the provisions of the regulation, cf. Section 7. After the 1st of July 2022, The LIA is also granted supervisory authority over the regulation. Consequently, the LIA may issue orders and make individual decisions which are necessary for compliance with the provisions of the regulation. The LIA cannot access the employee's home, however, without an agreement with the employee.

What do the amendments to the regulations entail for my business? 

Firstly, the amendments to the regulations entails a simpler way of handling employees working from home in situations where working from home is required or recommended by the authorities. 

For employers who have acted in accordance with the current regulation’s provisions concerning working hours, PwC recommends that the employee’s employment agreements and agreements concerning working from home are reviewed and revised in compliance with the provisions in the WEA. 

PwC also recommends that the employer: 

• Make sure that the company has agreements with each individual employee concerning work from home which is neither brief nor sporadic. 
• Introduces routines for keeping in touch with the employee’s working from home, i.e regularly set up digital arenas in which the employees can communicate with colleagues, and enable employees to attend meetings digitally.
• Reviews the health, environment and safety routines, to ensure that the internal control systems also include home office work.

Our labor law attorneys are experienced with review and revision of employment agreements, and compliance, as well as the particular health-, environment- and safety challenges that the home office entails. We are more than happy to assist with a revision of your company’s agreements with the employees, or to discuss practical issues relating to the home office.

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This blogpost is written by Ingrid Fladberg Brucker and Bjørn Eivind Strømman.