Ole Kristian Olsby Nina Elisabeth Thjømøe May 19 2021 Proposed amendments to home office regulations published for consultation Homble Olsby | Littler | Employment & Immigration - Norway Ole Kristian Olsby, Nina Elisabeth Thjømøe Employment & Immigration IntroductionKey changesScope of regulationsWritten agreementsWorking environmentWorking hoursNorwegian Labour Inspection Authority to supervise complianceIntroductionDue to the COVID-19 pandemic, home offices have become part of everyday life for much of Norway's working population. Among other things, this has raised questions as to the rules that apply to home offices and placed greater relevance on the Regulations on Work Carried Out in Employees' Homes (715, 5 July 2002).Independent of the pandemic, there have also been numerous social and technological developments since the regulations entered into force in 2002, which has given rise to a need for a review of their provisions.Against this background, the Ministry of Labour and Social Affairs has published proposed amendments to the regulations for consultation. The consultation deadline is 23 July 2021.Key changesIn short, the ministry has proposed the following amendments to the regulations:The scope of the regulations will be clarified.An exception to the requirement for a written agreement will be introduced where home work is due to orders or recommendations from the authorities. In such cases, employers can instead provide information after discussions with employee representatives.It will be clarified that the provision on the working environment also covers psychosocial conditions.The Norwegian Labour Inspection Authority will have competence to oversee compliance with the regulations.In the consultation paper, the ministry has also requested the consultation bodies' input on whether home work should be covered by the ordinary rules on working hours in the Working Environment Act or whether there is a need for special provisions.The consultation paper also indicates that a larger survey has been initiated with respect to:the scope of use of home offices;development features; andthe consequences of using home offices and performing other telework.This mapping work will highlight conditions that may indicate a need for further changes or clarifications than those dealt with in this consultation.Scope of regulationsSection 1 of the current regulations defines their scope and states that they do not apply to "short-term or random" work performed in an employee's home. According to the consultation paper, the ministry sees little need for special rules where home work is brief, sporadic or random, as technological developments mean that many employees have access to email on their phones and case processing systems at home, which has resulted in more employees performing some work from home.However, the ministry believes that the word 'random' in particular has given rise to different interpretations, and that this provision should therefore be clarified by replacing the word 'random' with the word 'sporadic'. According to the ministry, 'sporadic' means homework that takes place from time to time, but not to an excessive extent or as a fixed scheme (ie, where workers occasionally take work home or perform a few hours of work from home).If the work performed at home has a certain scope and is carried out regularly, this cannot, in the ministry's view, be classified as sporadic. For example, an employee who works permanently one day a week from home will not work sporadically and therefore the regulations will apply. The ministry has also emphasised that home work can be regarded as a permanent scheme even if such scheme does not stipulate exactly when and how much work is to be done at home.In addition, the ministry is considering emphasising that the regulations will also apply to employees in conditions of employment that only involve short-term or sporadic work performed at home.Further, the ministry has highlighted that during the pandemic, questions have arisen as to whether the regulations apply where home working is imposed by the employer or the authorities. The consultation paper states that the ministry considers that the regulations currently apply regardless of the legal basis for home work, and that this should also apply in the future. The paper also states that the regulations do not regulate the actual right to impose home working and that this is not proposed to be changed.Written agreementsSection 2 of the current regulations states that a written agreement on home work must be entered into if the regulations apply and provides specific requirements with respect to the content of such an agreement. According to the consultation paper, the ministry does not see a need to amend this provision for normal situations with an agreed home office.However, the ministry believes that this is not the case in exceptional situations where the authorities have ordered or recommended home work. The ministry therefore proposes that an exception to this provision be introduced, under which employers may instead provide information to employees after discussions with employee representatives:Where homework is due to orders or recommendations from the authorities, instead of a written agreement, written information may be given to the employees about what follows from the first paragraph. The employer must discuss the information with the employee representatives before it is given. Working environmentThe current regulations stipulate that employers – as far as is practically possible – must ensure that the working conditions at an employee's home workplace are fully justifiable. The ministry believes that this should continue to be the overriding principle for home work.Further, the consultation paper states that requirements for homeworking equipment and coverage of various costs should continue to not be regulated in the regulations. In the ministry's opinion, such a regulation would be intrusive with respect to employers' assessments and organisation of their business as it would be inflexible and make it difficult to adapt to different situations.The ministry also sees no need to amend the rules on employers' obligations with regard to following up on employees' working environment.Section 3 of the current regulations lists examples of conditions that employers must ensure with regard to the requirement for a fully safe working environment (ie, "that the workplace, work equipment and indoor environment do not entail unfortunate physical strain"). This list is not exhaustive and indicates only physical conditions.In view of recent experiences relating to psychosocial conditions in home offices, the ministry proposes that psychosocial conditions also be included in the text of the regulations. The ministry emphasises that such a change would not lead to any change in reality but could contribute to increased awareness of this topic.Working hoursSection 6 of the current regulations states that the following provisions of the Working Environment Act do not apply to work performed in employees' homes:Section 10-4 on ordinary working hours;Section 10-5 on calculating average normal working hours;Section 10-6 on conditions for overtime and the length of overtime;Section 10-10 on working on Sundays; andSection 10-11 on night work.Further, the regulations set out more detailed rules on, among other things:normal working hours;what is considered overtime and night work;the arrangement of working hours; andthe limits on total working hours both at and outside the home.They also propose that Section 6 of the regulations does not apply to employees in senior or particularly independent positions.The ministry does not propose any specific changes to the regulations' rules on working hours but has requested the consultation bodies' input on whether home work should be covered by the ordinary working hours rules in the Working Environment Act or whether special provisions are needed.Norwegian Labour Inspection Authority to oversee complianceFinally, the ministry proposes that the Norwegian Labour Inspection Authority be authorised to oversee compliance with the regulations and issue orders that are necessary for their implementation.For further information on this topic please contact Ole Kristian Olsby or Nina Elisabeth Thjømøe at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.