In the corona crisis, working from home has become part of everyday life for many office workers. Nevertheless, the employer may not force his employees into the home office, nor is there a legal right to work in the home office – yet. Federal Minister of Labor Hubertus Heil is currently preparing a bill to secure the right to work from home.
The background to this is the experience from the COVID-19 pandemic, in which employees with school-age children were faced with a difficult situation if their employer did not want to allow them to work in the home office. The parents had to rely on paragraph 616 BGB, according to which a lack of childcare justifies absence from work in exceptional cases. However, this only applies to a few days.
Most companies, however, showed themselves to be generous in the crisis and it was important to keep their operations up and running. It was a relief that the legislature did not immediately prescribe a fully equipped teleworking workplace, but for some years had also allowed mobile work to be implemented more easily. People have come to terms with it, they work at the kitchen table, in the garden or in the fully equipped home office.
However, the room and lighting conditions, the furniture and the IT equipment are not always optimal. This is a problem because the legal situation regarding occupational safety is clear – both for teleworking and for mobile work. Many companies are currently operating in a legal gray area, also because they can hardly check the real situation of their employees. Below is an overview of the legal situation.
- Rights and duties in the home office
Labor law also applies in the home office. Claudia Knuth, specialist lawyer for labor law in the Hamburg office of the law firm Lutz Abel, explains the rights and obligations of employees and employers.
- The employer decides
The employee is not entitled to a mobile or domestic work place. Ultimately, it is the employer who has the freedom to organize the company organization.
- Pay attention to the legal situation
Anyone who takes home printouts, files or forwarded e-mails risks sanctions under labor law, depending on the sensitivity of the information, even to the point of termination. Employees should therefore coordinate precisely with the employer beforehand whether and which company documents they can take home.
- Check requirements
In principle, the employee’s work must be suitable for this. Company appointments, customer appointments and meetings should have priority. If mobile work can be integrated into operational processes without disruption, the same efficiency of work performance as for presence work should be ensured.
- Clarify working time recording
Instead of stamping in and out at the start and end of work, it should be noted in the home office how long the employee worked each day of the week. A prerequisite for this is a work culture based on trust and results, since time recording is more difficult to control. The Working Hours Act also applies outside of the office: The maximum working hours per day (maximum ten hours), the rest periods (at least eleven hours) and the ban on Sundays and public holidays must be observed.
- Ensure data protection
The employer must take the necessary protective measures. For example, secure data transfer can be guaranteed by using VPN connections. It is important that only software and files approved by the employer are used. The employee must ensure that no one else, including family members, has access to the mobile devices used. In addition, passwords may not be passed on to third parties or be kept negligently easily accessible.
- Works council’s right to have a say
The works council has no say in the decision for or against mobile work. With some changes, however, for example when changing working hours, using technical facilities that have not yet been determined, preventing accidents at work or transferring work. The works council must also be involved in the planning process.
- Assumption of costs
If the employer grants home office, he must also bear the necessary costs. This includes the office equipment, the technical equipment and the telecommunication costs. Either the employee is equipped with everything necessary or he uses his own end devices (“bring your own devices”). Whichever variant or mixed constellation you choose, a contractual basis is essential.
Telework has been clearly regulated in an amendment to the Workplace Ordinance (Section 2, Paragraph 7) from November 2016. These are screen workstations set up by the employer in the private sphere of the employees. For this, companies and employees have to agree on a weekly working time and determine how long this working state should last in total. Telework must be laid down in the employment contract. The employer is responsible for “equipping the telework station with furniture, work equipment, including communication facilities”.
Before a home-based workplace is set up in the sense of teleworking, the company has to prepare a risk assessment. This is done by the employer – with the consent of the employee – inspecting his workplace at home. At least he has to ask about the domestic circumstances. If necessary protective measures are identified in the course of these investigations, the employer must take them.
The “mobile work” (mobile office, remote working), which is also permitted, is not legally clearly regulated. This type of mobile work was introduced to meet the increasing mobility requirements in the world of work. The only thing that is important is the availability of the employees. Mobile work is not subject to the workplace regulation. As with teleworking, networking with the company is required, but the work itself can be done from anywhere. Here, too, the employer has a duty of care and responsibility for the safety and health of his employees. Occupational health and safety applies without restriction.
However, when it comes to mobile work, there is more responsibility on the part of the employees. You yourself have to pay attention to the observance of the work and health regulations, since you determine the circumstances of your work yourself. However, this does not release the employer from fulfilling his protective duties here as well and informing and empowering employees about how to deal independently with risks. In order to ensure adequate occupational safety, the law on mobile work recommends
the provision of safe, ergonomically designed work equipment, e.g. equipping notebooks with an additional screen, an external keyboard and a height-adjustable stand for the monitor. Employees must be regularly informed about hazards and protective measures.
Even if both teleworking and mobile working are there to make working hours more flexible, in both cases the Working Hours Act and the obligation to record overtime working hours apply. The employees can do this themselves, since it would otherwise hardly be practicable. The rest periods also correspond to those of an employee who works in the office. It is important that there is a rest period of at least eleven hours for teleworking and mobile work at night or between two shifts, provided there are no exceptions.
Statutory accident insurance is a much-discussed topic in connection with working outside of the office. Protection relating to accidents at work and occupational diseases also applies to teleworking and mobile work, provided that the employees are permanent. In fact, there are always delimitation questions. The decisive factor is whether there is an “internal connection” between the events that led to an accident and the operational activity.
A frequently cited example from 2016 relates to a woman from Mainz who slipped and injured herself when she left her attic office to get a glass of water in the kitchen on the ground floor. In the first instance, the judges ruled that it was not an accident at work. When working from home, there is no reason to put food insurance under cover. In the second instance, however, the Rhineland-Palatinate State Social Court came to the conclusion that it was definitely an accident at work because the person affected could only reach her office via the stairs and the food intake “served to maintain her workforce”. In addition, homeworkers should not be in a worse position than their colleagues in the company premises.
Finally, the Federal Social Court in Kassel decided in the highest instance against the worker: going up the stairs at home was not an “operational route”, the kitchen and the way there were part of the personal life, not the workplace. Statutory accident insurance institutions cannot be expected to take precautionary measures in the private homes of employees. Therefore, the insurance companies would not have to pay for accidents in the private sector. If the person concerned had gone to their printer to replace a cartridge, the work accident would have been classified as such.
While the Federal Data Protection Act always applies, regardless of the place of work, there are special features for teleworking and mobile working, because the employer has only limited control and influence. At the same time, the security risks increase if, for example, data carriers are stolen in public space or third parties view the screen. There can also be risks with regard to data backup if this is not done by central operational systems, but is the responsibility of the employees.
Employers have to weigh up which tasks they want to be done remotely and under possibly worse security conditions. Sometimes they even have to take adapted technical and organizational measures, which must also be laid down in the employment contract. However, employees are liable for damage caused by the violation of their employment contract obligations. Anyone who acts deliberately or through gross negligence must bear the damage in full, whereby in the latter case, depending on the situation, relief from liability is possible. Employees’ liability is reduced in the event of normal or slight negligence.
It is important that teleworking and mobile working increase the risk of suffering damage from third parties. The discussions always start when these third parties are family members or roommates. A limitation of liability according to the principles of the “contract with protection in favor of third parties” (VSD) could apply here. It is questionable whether this also applies to external visitors. In some cases, it can be worthwhile for employees to make an individual liability agreement in advance.
Who bears the risk of salary if there is a power failure or technical defects so that working in the home office is not possible? In the office, the employer usually bears the risk, and it is the same with teleworking and mobile working, unless there are other agreements.
Basically, the following applies: the employer has the right to issue instructions; it determines where the place of work is. Home office, regardless of the variant, is only allowed if a company agreement has been made beforehand. If companies bring their employees back after the corona crisis, they have to ensure compliance with the hygiene rules. The minimum distance of 1.5 meters must be maintained everywhere in operation – in buildings as well as outdoors and in vehicles. Markings and access rules help make it happen. If this is not possible, a separator must be installed, but in any case nose-to-mouth coverings must be made available – for employees as well as for customers and service providers.
But what is the legal situation if employees want to play it safe out of fear of being infected and insist on continuing to work in their home office? The answer to this depends on the circumstances. If the works council has a company agreement with the employer that provides home office by a certain date, this is valid – even if the employer believes that the employees should return to the office earlier.
If there is no such agreement, the employee must follow the instructions and come back to the company. The prerequisite is that the employer can guarantee appropriate hygiene measures such as a distance and sufficient disinfectants. There are various special regulations for employees with previous illnesses, a decision must be made in individual cases.