Many employees would like to work in a home office. But are they entitled to? And what requirements do employers have to meet? The most important regulations at a glance.
Dear readers, we note that this article is currently read particularly often. Since we suspect a connection with the Corona crisis, you will now find information on home office and Corona preceding the article.
Content: What awaits you in this article
Are employees allowed to work in a home office for fear of a Corona infection?
"Fear alone does not justify staying at home," says Volker Gorzel, a specialist attorney for labor law and founding partner of HMS.Barthelmeb Gorzel attorneys at law. If there is no concrete suspicion that an employee is infected, employees must always appear at the company – unless an employer agrees with its employees that they are allowed to work in the home office.
If, on the other hand, there is a suspicion that an employee has become infected with the corona virus, the situation is different, according to Gorzel: If there is a concrete risk of infection, employees are allowed to work from home if their job and living situation make this possible.
If an employee refuses to work for fear of infection, even though there is no suspicion of infection, Gorzel says bosses can give him a warning and, if he does it again, terminate him for misconduct.
Are employees with children allowed to work from home when schools or daycare centers are closed for Corona??
There is no legal entitlement to a home office in Germany. However, Frieder Werner, specialist attorney for labor law and partner at the Stuttgart law firm Menold Bezler, advises against the backdrop of the Corona crisis: "Due to the situation, employers should nevertheless check whether it is possible for them to allow employees to bring their children with them or whether they allow employees to work from home as far as possible."
May employers instruct employees to work in home office?
Home office may not be ordered unilaterally by employers, according to Gorzel. "This must always be accepted by both sides."If an employee refuses to work in a home office, the employer must release him from his work duties and give him paid time off.
Basic legal regulations on the subject of home office
Who bears the costs for a home office? Does the employer have to pay a "rent"? And what about data security? Business owners who allow their employees to work in a home office must clarify many details in advance.
Thanks to the Internet and collaboration tools, it is becoming less and less important for companies where the work is done, as long as the result is right. Employees are therefore working more and more flexibly in terms of time and are, for example, still available for customer telephone calls in the late evening hours. This is why working in a so-called "home office" – i.e. working from home – is becoming more and more commonplace. But what is important to keep in mind when it comes to employment law? Labor lawyer Martina Hidalgo explains what is important when working from home.
Can the employer order home office unilaterally?
For companies, the question may arise as to whether they can also employ employees Can instruct without their consent, to work in a home office in the future (for example, if a permanent establishment is dissolved). Here the clear answer is: No, such an instruction to the employee would be illegal, says employment lawyer Martina Hidalgo from the law firm CMS Hasche Sigle. Because the employer’s right of direction ends at the employee’s front door. The employer cannot force the employee to make his private rooms available as a place of work.
Can the employee demand from the employer to work from the home office?
Conversely, the employee can also not unilaterally demand from the employer that instead of working in the company work wholly or partially in a home office May, says Hidalgo. This is because it is part of the entrepreneurial freedom to organize work as the company sees fit. If home office workplaces are not part of the corporate concept, the employee must accept this.
Something else may apply if the company agrees in principle to home office employment and has documented this agreement, for example, in a works agreement or a reconciliation of interests (Federal Labor Court, ruling of 02.03.2006 – 2 AZR 64/05). Here, however, it depends on the individual case whether the employee can actually unilaterally enforce his employment in the home office. This should be the exception.
Even if employers have allowed employees to work from home offices on several occasions, there is no permanent claim on it, says Anja Branz, specialist lawyer for industrial law with the Kanzlei DHPG. Bosses can revoke such an arrangement at any time.
When do I need to explicitly regulate home office employment?
The home office employment is consensual. Whether to detailed regulations must be made or cursory – i.e., verbal – meetings must be held Agreements are sufficient, depends on the circumstances: If the employee makes a phone call to a customer in the U.S. late in the evening in his home office and otherwise basically works at the company site, detailed regulations are certainly superfluous; often the supervisor does not even know that the employee works in the home office because he organizes his work independently. But always, if fixed home office days are introduced, If the employee does not come to the office at all, a corresponding contractual arrangement should be made.
What are the working hours in the home office?
Basically, the following applies to the employee Working Hours Act also at the workplace at home. In other words, the employee may not work more than eight hours per day. A certain flexibility However, the Working Hours Act does concede. Whenever there is more to do, the workday can be extended up to ten hours – on one condition: The more hours worked must be compensated within the next six months. On average, no one may work more than eight hours per workday within six calendar months.
In addition, the employer must also ensure that employees in the home office have the Documentation requirements regarding working hours fulfill. It is advisable to agree with the employee that he documents his working time in the home office himself and submits it to his supervisor at certain intervals. It also makes sense to set fixed times for the employee’s availability if the employer attaches importance to this.
How are breaks and rest periods regulated in the home office??
The usual rules also apply to work in a home office Rest periods and breaks, as stipulated by the Working Hours Act. On days when employees work more than six hours in the office at home, they are entitled to a break of at least 30 minutes. If they work more than nine hours a day, they must take a break of at least 45 minutes.
Rest periods in the home office are also clearly regulated: There must be at least eleven hours without interruption between the end of the working day and the next working day. Exceptions can be made here as well: If the rest period is shorter on one day, it must last at least twelve hours on another day – within a calendar month or within four weeks.
Must home office employees be available at all times?
Just because employees work in a home office does not mean that they have to available in their free time must be. The principles of the Working Hours Act apply. Exceptions must be contractually stipulated in the legal framework.
Should employers put a home office arrangement in writing?
Written documentation of the home office arrangement is always useful if someone regularly works at home. In it, employers should note, for example, how many and which days the employee is allowed to work in the home office. If fixed times or days are planned for the home office, clear written agreements, for example on the amount of time or the availability at the workplace at home, prevent conflicts.
How must occupational health and safety be implemented in the home office?
"How and from when the home office workplace is subject to occupational health and safety regulations is disputed in the legal literature," says Martina Hidalgo. The Workplace Ordinance (ArbStattV) explicitly refers only to teleworkplaces in this respect. A telecommuting workstation is one that the employer equips with furniture, work equipment and communications equipment on an employee’s private premises. In this case, the employer must observe certain requirements: The telecommuting workplace must be safe and must not endanger the employee’s health. Office furniture, for example, should be ergonomically adapted, the room large enough and the lighting adequate. The exact specifications are set out in Annex 6 of the ArbStattV "Measures for the design of visual display workstations".
But how can the employer check compliance with these occupational health and safety regulations? According to Martina Hidalgo, if employees are telecommuting, it makes sense for them to have a right of access to the employee’s private residence. Anyone living in the private residence must agree to this right of access. It also makes sense to specify:
Who exactly may enter the home, for example the occupational safety officer, the data protection officer, works council member or supervisor?
What notice periods should apply outside of urgent cases for a visit by the employer?
Not everyone wants to have an office set up at home by their employer and receive regular visits from them. But what rules apply if someone wants to work on their laptop at home, for example? Then it is unclear whether and how the employer can and must comply with the occupational health and safety regulations in the home office. The problem: Without the employee’s consent, he or she cannot enter the employee’s private premises.
"In such a case, the Workplace Ordinance exempts the employer from complying with the regulations that apply to teleworkplaces," says Martina Hidalgo. However, many expert authors conclude from the overriding occupational health and safety regulations that the employer cannot completely evade occupational health and safety.
Up to the clarification of the legal situation the Juristin recommends employers to proceed with sense of proportion. You should, for subordinate home office activities, inform employees how to work "properly" in the home office, for example: What does a healthy workplace look like?? What must be observed in the case of VDU work? What are the typical risks of working at home? If the work is carried out regularly and predominantly in the home office, the company can consider offering the employee the option of setting up a telecommuting workstation and thus getting to grips with the occupational health and safety regulations.
Who bears the costs for the home office?
The Work equipment in the home office are often provided by the employer. More exciting, therefore, is the question of whether the employer must pay the employee a "rent" for the workplace at home. Here again it depends strongly on the individual case: If only professional telephone calls repeatedly conducted from home, this certainly does not lead to a claim for reimbursement by the employee against the company.
The Federal Labor Court recognizes that in certain professions, for example in field service, it is customary to work in a home office to a small extent and to make the private apartment available for this purpose free of charge. The same applies if the employee can decide for himself where he works: at home or in the company, wherever a workstation is available to him. Does the employee work against predominantly in the home office and no workstation is available to him in the company premises, it looks different. If so, the company must either rent the space used for this purpose from the employee or pay the employee a monthly flat rate for use, energy, heating, cleaning and other maintenance costs.
Who is liable in case of accidents in the home office?
In principle, the following also applies in the home office Protection of the statutory accident insurance – but only as long as the employee actually works for the company. The German Statutory Accident Insurance puts it this way: It must be an "activity serving the business".
If the employee works for customer service, for example, telephoning customers and answering e-mail inquiries is an activity that serves the business. This also applies to paths that must be traveled to perform this work. Going to the printer or to the cupboard with office materials are therefore insured.
The situation is different for ways that an employee from private reasons put back. If the employee accepts a package at the door that has nothing to do with his or her work, there is no insurance coverage. The same applies when he goes to the toilet or makes himself a coffee in the kitchen. In the home office, this is considered a purely private and therefore uninsured activity.
This is the The major difference to work in the companyAccording to the established case law of the Federal Social Court (BSG), going to the toilet and eating at work is insured, but going to the home office is not. There the employee is in the usual environment. For example, the BSG ruled in July 2016 (Az.B 2 U 5/15 R), for example in the case of a woman who worked in her home office in agreement with her employer and broke her foot while fetching water, that she could not claim an occupational accident for this. The employer is not responsible for the risk, as the living area of the employee is designed, it was said in justification.
How can company secrets and data be protected in the home office??
Data protection and the protection of company secrets and IT security are issues that become more acute when employees work from home. The responsibility of the employer just for Compliance with data protection regulations does not end with the partial "outsourcing" of data processing to home office workstations.
The measures the employer wants and has to take depend on which data, company secrets or IT devices the employee uses from the home office. For example, the company can prohibit particularly sensitive data from being taken home. The employer can order the exclusive use of IT systems for business purposes, which must also be protected against access and inspection by third parties. Frequently also technical measures, such as encrypting data or using a virtual private network (VPN), is different. It is important that the entrepreneur thinks about these issues. Which solution is found then depends on the individual case.
When can home office employment be terminated?
As long as working in the home office is only sporadically the question of termination hardly arises. However, if the company has given the employee fixed home office days If the employee is allowed to work at home or generally moves the activity from the company to the home office, the legal situation is more difficult.
First of all, a distinction must be made as to whether the home office agreement was negotiated with the employee on an individual basis because, for example, the employee wants to be at home at lunchtime in the year after his child starts school and is therefore permitted to work from home for a limited period of one year. In the case of such individual agreements the possibility of termination depends exclusively on what the employee and employer have agreed upon.
If, on the other hand, identical home office agreements are made with a large number of employees, according to a ruling by the Dusseldorf Regional Labor Court (10.09.2014 – 12 Sa 505/14) the termination of home office employment may not be possible without further ado. In such cases, the employer must make the decision to terminate the home office activity taking into account the interests of the employee take the necessary measures and also obtain the works council’s consent to the transfer for. Because the permanent activity of the employee in the company differs considerably from the fact that he is also active at least partially in the home office. With this in mind, companies should review their home office agreements to make sure they are still effective.
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