Before the 2020 Coronavirus pandemic, off-site forms of working such as telework, alternating telework and working from home (WFH) – were the exception rather than the rule for German employees. There have been some considerations to establish a holistic "home office law" in the past, however, it was not until the summer of 2020, when the Federal Labor Minister announced that he intended to initiate a comprehensive legislative project to deal with the pandemic. Most recently, a right to mobile working 24 working days a year (with a 5-day week) was discussed, though given the fierce opposition it received, it is likely to be watered down to a right to have a “serious discussion” with the employer on the question whether WFH or mobile working can be implemented. In other words, a universal codification of the law regulating to WFH is not to be expected any time soon.
Until then, the legal regulations for work in the company will also apply to any form of off-site working. That being so, we would like to shed some light on the multitude of existing stipulations which, like a mosaic, constitute the current legal framework for WFH. These norms can be found in the Industrial Code, the Occupational Safety and Health Act, the Workplace Ordinance and the German Civil Code.
Who gets to say whether the employee works from home or on site?
From the fact that the employees currently do not have a right to demand WFH, it follows in reverse that the employer cannot keep the employee away from the company against his will. Thus, the permanent transfer to the home office is not covered by the employer's general right of direction according to Sec. 106 of the German Trade Regulation Act (GewO). This is because the circumstances of work in the workplace at home are noticeably different from work performed on site: the employee has no direct contact with his colleagues and the opportunity to communicate with them is significantly reduced. In addition, the boundaries between work and leisure time become blurred.
However, the situation may be different in exceptional situations such as natural disasters or health emergencies such as the current Coronavirus pandemic. In such cases, often only a temporary transfer to what in Germany is generally referred to as the "home office" is considered; nevertheless, the affected – possibly conflicting – interests of the parties involved must be carefully weighed against each other. In view of the employer's duty of care and the employee's duty of loyalty, the transfer to the office at home can then be ordered in order to avoid danger– for employees as well as employers – if the life of the employee, his health and his physical integrity, as well as that of his colleagues and the company are to be protected from the potentially catastrophic consequences of the spread of the disease within the company. Such restrictions must be accepted by the employee, especially if the transfer to WFH is only temporary.
Who bears the costs?
As for work in the company, the employer is obliged to provide the necessary activity-specific work equipment for the workplace at home and to bear the costs incurred. The employee may be entitled to compensation and reimbursement of expenses against the employer. In this regard the following points are regularly in dispute between the parties:
- Work equipment
If the employer provides the employee with work equipment (e.g. cell phone, laptop, external data carriers), the employer bears all costs incurred for purchase, maintenance and care. If, on the other hand, the employee is to use his own work equipment, he may be entitled to claims for reimbursement of expenses against the employer. However, this only applies if the parties have not agreed otherwise, the acquisition of the work equipment was in the overriding interest of the employer and the employee could reasonably assume that the expense was necessary under the circumstances. A purchase is not in the overriding interest of the employer if it is also used privately by the employee, or if the employee works from home at his or her own request, even though a fully functioning workplace is available to him or her in the company, during the employees regular working time.
- Working space
Expenses to be reimbursed include in principle also electricity, heating and maintenance costs as well as the rent for the space within the private dwelling of the employee that is used as office space by the employee. Since a considerable sum can accumulate and the administrative burden of reimbursement are significant it has become established in practice to agree on a monthly lump sum (“home office allowance”) to cover these expenses.
- Travel expenses
If the private home is the agreed place of work then this also affects travel costs: As soon as the employee leaves his home, he is formally on a business trip and can claim reimbursement of travel costs from the employer. This not only applies for visits to business partners, but also for any travel to the employer's premises. If, however, the work is divided between the office and the home of the employee, the employee must pay the travel costs to the business premises himself.
My home is my castle – but is it safe?
The working space at home poses a lot of challenges when it comes to working safely, and the employer – who normally beards the responsibility for the employee’s safety, has little influence when the employee works from home. This applies to the general working environment as well as the working time.
- Work around the clock
It is important to note that all working time regulations apply, such as the maximum daily working time, regulations regarding breaks and the minimum rest period between two working days when it comes to WFH-arrangement. In principle the employer has to document the working time if the employee exceeds the regular daily working time. Typically, the parties agree that the employee himself is making those records on behalf of the employer. It is worth noting in that context that, for example, the CBA in the metal and electrical industry in Baden-Württemberg reduces the daily rest period by two hours, as long as the mobile working employee can determine either the beginning or the end of the daily working time himself. This takes into account the importance of mobile working in particular for the compatibility of family and career.
- A safe workplace at home
The employer has a general duty of care for the employee, which derives from his contractual duty of care and is concretized by individual laws. This raises both legal and, above all, practical questions when it comes to off-site work forms.
The employer must, on the one hand, ensure that the employee can perform the work without jeopardizing his or her own health and safety and, on the other hand, take measures to continuously secure and improve occupational safety and health. Where the employee works from home this is a challenge: The German Constitution protects the private home and consequently – unless the parties have explicitly agreed that the employer has a right to access – the obligation of the employer is in obvious conflict to the rights of the employee.
Further the employer does not have any influence on all "domestic" dangers which threaten the employee at home. Ultimately the employer can only inform the employee about the occupational safety obligations and instruct him or her to comply. This applies in particular to the specific regulations applying to working at a computer: An initial risk assessment has to be conducted and a subsequent instruction be given regarding identified potential sources of danger and then the joint setup of the monitor workstation.
- Mobile Working during the Pandemic
The extensive and often very spontaneous job relocations due to the current Coronavirus pandemic will have been initiated mostly as a short-term, urgent measure without any alternative, so the provision of equipment is likely to be lacking in any case and the characteristics of a teleworking job are not fulfilled. Even in these cases, the health and safety obligations remain in force, though it is difficult to verify whether the required minimum level of safety for the employee is ensured.
In past months employees have worked out of their cellars, garages and on kitchen tables for lack of available proper office space in their dwellings to follow the appeal of public health officials to work from home wherever possible or to be able to cope with missing child care or school closures during lockdown periods. It is obvious that these are inadequate workplaces and that they are clearly not in compliance with even the most tolerant interpretation of any health and safety regulations. If the employee has requested to work from home (for his personal safety during the pandemic or due to childcare issues) it stands to reason that the less stringent “mobile working” rules apply. The flexibility the employee enjoys here is automatically accompanied by the fact that the employer's influence in terms of health and safety is de facto no longer given. In this case, the employer's duty is limited to a general risk assessment, which – if a self-chosen workplace is to be used permanently – should identify typical dangers of this workplace and point out their realization.
Due to the fact that occupational safety obligations are reduced because of the employer's lack of influence, the employee's duty to cooperate in the WFH space is of increased importance and should be stipulated in any WFH agreement. In addition to the right to ask questions and make suggestions, employees are above all obliged to take precautions for self-protection and to report considerable dangers resulting from the workspace at home to their employer.
- Accidents at home
Regarding the mandatory occupational accident insurance that provides very intensive protection and gives employee access to specific rehabilitation measures the coverage in case of WFH arrangements has regularly been in dispute since a decision of the Federal Social Court in 2016 denied coverage under that scheme if the employee has an accident walking from his office-desk to the kitchen in his own home. Whilst a similar accident would no doubt be covered if it occurred on the premises of the employer, the court reasoned that in case of WFH this was an activity exclusively attributable to the employee's sphere of risk. In 2018, the Federal Social Court clarified that insurance cover applies only if the accident occurred in the dedicated office space at home and if the employee was actually working for the employer at the time the accident occurs. Since then, it is generally recommended, that employers provide specific insurance cover to avoid any disputes in this context.
Business secrets and data protection
It is obvious that, when performing work outside the company, third parties have easier access to company information, since information is processed outside the company. Nevertheless, the employee is obliged to keep company and business secrets. This also applies in relation to family members, flatmates or other third parties who are permanently or occasionally present where the employee performs his work outside the company. The employer may establish a comprehensive program of duties to safeguard business and trade secrets. For example, the employee can be instructed to keep the home office locked or to secure any data carriers on which company-related information is stored with passwords.
Furthermore, both parties are committed to data protection. The employer must protect the employee's personal data by technical or organizational measures. The employee has to observe the principles mentioned in Sec. 5 GDPR and has to guarantee the security of the processed and self-produced data in the home office. The risk of data protection violations is particularly relevant if the employee uses his private cell phone or laptop.
Collective labour law
In terms of collective labour law, the main question is whether working from home is also applicable "for and by" works councils. On the one hand, it is thus a question of whether works council members may also work from home if they are obliged to be present in person, as in the case of works council meetings. On the other hand, it is questionable whether and to what extent the establishment of a home working in a company is dependent on the participation of the works council.
- Works Council from Home
Whereas it is normal for European Works Council Act to provide for participation in meetings "by means of new information and communication technologies" for the European context, there is no corresponding provision in the German Works Council Constitution Act (BetrVG). For this reason, virtual works council meetings prior to the pandemic were not tolerated and resolutions passed were considered to be null and void.
The ability of the works councils to act and pass resolutions was equally restricted when the Coronavirus pandemic hit. The Federal Labor Minister, in a press release March 23, 2020, expressed the view that resolutions passed via video or telephone conference, Webex or Skype meeting were considered effective, regardless of whether only one or all works council members were connected virtually.
The ministry’s legal position, which initially represented only a rather controversial view – was then included in a law passed in May 2020 and decisions of any kind taken in virtual meetings were given legally binding effect. This stipulation applied retroactively to all decisions made after March 1, 2020 and going forward to decisions taken until December 31, 2020. We expect this exception to be prolonged into 2021. It is not likely, however, that this will become a rule permanently.
- Works council participation
The off-site workplafce is also part of the establishment and is thus in the scope of application of the Works Constitution Act. The general introduction of WFH is subject to codetermination for various aspects. This does not apply however with only occasional activity in the home workspace. Bringing employees back
Some employees may be longing to work at their normal office space again after the pandemic, others may enjoy the liberties WFH brings and will try to convince the employer to allow them to work from home permanently.
If a formal WFH agreement is to be concluded the employer is well advised to reserve the right of revocation. If no such an agreement has not been made beforehand, the employer can unilaterally order the employee to resume the activity at his premises. This is because the arrangement of home working is regularly a result of temporary changes in the outside world – such as the current pandemic –, the employee could not assume that the employer had the intention to move the work place to the private home of the employee.