Working from Home – Legal Regulations for Employers and Employees
With the sharp rise in infection figures in recent weeks and the resulting lockdown, working from home is once again becoming a daily working environment for many employees. However, there is still uncertainty among both companies and employees about the legal regulations regarding working from home. We spoke to Claudia Knuth, specialist lawyer for employment law and partner at the law firm Lutz | Abel, about the current legal situation regarding working from home.
Lendis: What is the current status quo when it comes to the legal aspects of working from home?
Claudia Knuth: Due to the coronavirus pandemic, working from home has gone from the exception to the norm for many employees in recent months. Nevertheless, there are still hardly any legal regulations on how working from home should be organized. This always requires a robust contractual basis that regulates issues such as the organization of working hours, work and data protection, the assumption of costs and the termination of work in the home office.
Lendis: Does the employer have to provide employees who are working from home with a desk and a chair?
Knuth: The employer must equip the workplace in the office or the furnished home office workplace at his own expense. If employees do not have their own suitable desk or office chair, the employer must provide the employee with suitable office furniture. Furniture that meets the requirements of the Workplace Ordinance is suitable for this purpose.
Info: The Workplace Ordinance sets out clear requirements for workplaces and workstations. You can also find out more in our article on the topic: Ergonomics in the workplace
Lendis: Some employers give their employees one-off grants to buy their own equipment for working from home. What do you think of this approach and what problems could it cause?
Knuth: If employees work from home, the employer must ensure compliance with a minimum standard of occupational health and safety. This also applies if the employer provides the employee with a subsidy so that they can equip their home office workstation themselves. As part of the risk assessment, for example, it is up to the employer to assess whether the purchased work equipment is ergonomic, age- and age-appropriate. The assessment is naturally more difficult when employees equip the workplace.
Lendis: Many employers have introduced mobile working, but this can only be implemented to a limited extent as many employees can only work from home due to the pandemic. Isn't that teleworking then?
Knuth: The term "teleworking", in contrast to "home office" or "mobile working", has been legally defined since November 2016. According to the German Workplace Ordinance (ArbStättV), teleworking workplaces are "workstations permanently set up by the employer in the private area of the employees, for which the employer has agreed weekly working hours and the duration of the set-up with the employees". Teleworking only applies if the employer not only provides the necessary end devices, but also equips the workplace as a whole with furniture. This is generally the case with home offices, so that these requirements also apply to furnished home offices.
The situation is different with mobile working or the "mobile office", i.e. working from different locations outside the company (e.g. on the train, in a hotel, on the sofa at home or in the park). However, if the employee can only work from home on a permanent basis, mobile working can become a home office.
Lendis: In your opinion, what are the biggest legal challenges in the trend towards working from home?
Knuth: Challenges arise in particular with regard to occupational health and safety and data protection (more on data protection in the home office). Employees run the risk of not being able to clearly distinguish between working time and free time and not complying with the provisions of the Working Hours Act (in particular rest breaks and times, maximum working hours, ban on working on Sundays and public holidays). In view of the case law of the European Court of Justice on the recording of working time, it is advisable to use transparent time recording systems now.
For the employer, there is also the risk that third parties (e.g. family members) may have access to company data, in particular to the employee's laptop or cell phone. The employee should therefore be required by means of a specific contractual agreement to only use software and files approved by the employer and to keep passwords and company documents inaccessible - ideally locked in a filing cabinet.
With regard to occupational health and safety regulations, employees should first have suitable premises in which it is possible to set up a home office workstation. The work chair and desk should meet current ergonomic requirements. A risk assessment should also be carried out at the start of working from home. In order to avoid having to inspect every workplace, the risk assessment should be carried out by asking employees detailed questions (using a questionnaire).
Lendis: In your opinion, what direction could legislation take, especially when looking at other European countries, e.g. in Spain, employers have been obliged to cover the costs of employees' home office equipment?
Knuth: In Germany, employers already have a fairly comprehensive obligation to bear the costs. In principle, this only does not apply if home office is approved at the request of the employee.
In addition to the right of employees to work outside the company for at least 24 days a year, the Federal Minister of Labor's draft law also provides for an obligation on the part of the employer to digitally record working hours. According to the BMAS, employers would only be allowed to refuse employees' entitlement for "compelling operational reasons". This would primarily affect companies in which mobile working is de facto not possible (e.g. bakeries or craft businesses). Trade unions, works councils and staff councils are also to be given an enforceable right of co-determination with regard to the introduction and organization of mobile working. If a corresponding law is passed at all in this legislative period, it is also conceivable that a "reasonableness limit" will be introduced - similar to the entitlement to bridging part-time work - so that an entitlement to mobile working would only exist above a certain number of employees. It is also unclear whether the draft law will also make the rigid regulations of the Working Hours Act more flexible.
Lendis: Thank you for the interview!
