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 Corona pandemic, the home office has become the norm for many employees in recent months. Nevertheless, there are hardly any legal regulations on how to specifically structure work in the home office. This always requires a solid contractual basis, which regulates in particular questions of working time arrangements, data protection, the assumption of costs and the termination of activities 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 has to equip the workplace in the office or the furnished home office workplace at their own expense. If employees do not have their own suitable desk or office chair, then the employer must provide the employee with appropriate office furniture. Suitable for this are furniture that complies with the requirements of the Workplace Ordinance.
Info: The German Workplace Ordinance contains clear regulations regarding the requirements that workplaces and work areas must meet. You can also find more information on this in our article on: 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 in the home office, the employer must ensure compliance with a minimum standard of occupational health and safety. This also applies in the event that the employer provides the employee with a subsidy so that they can equip their home office workplace themselves. As part of the risk assessment, it is the employer's responsibility, for example, to assess whether the purchased work equipment is ergonomically designed and suitable for all ages. The assessment is naturally more difficult if 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: In contrast to "home office" or "mobile working", the term "telework" has been legally defined since November 2016. According to the Workplace Ordinance (ArbStättV), teleworkplaces are "computer workstations permanently set up by the employer in the private area of the employees, for which the employer has determined a weekly working time agreed with the employees and the duration of the setup". It is only telework if the employer not only provides the necessary end devices, but also equips the workplace as a whole with furniture. This is usually the case with the home office, so that these requirements also apply to the furnished home office.
The situation is different with mobile work or the "Mobile Office", i.e. location-independent work at changing 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 permanently, mobile work 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 that working hours and free time are not clearly distinguishable from each other and that they do not comply with the requirements of the Working Hours Act (in particular rest breaks and periods, maximum working hours, ban on Sunday and public holiday work). In view of the case law of the European Court of Justice on working time recording, it is advisable to already use transparent time recording systems.
The employer also faces the risk of third parties (e.g., family members) accessing company data, especially on the employee's laptop or mobile phone. Therefore, the employee should be required, through a specific contractual agreement, to use only 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, there is already a fairly comprehensive obligation for the employer to bear costs. In principle, this only does not apply if the home office is approved at the instigation of the employee.
In addition to an employee's entitlement to a workplace outside the company of at least 24 days per year, the draft law of the Federal Minister of Labor also provides for an obligation for the employer to digitally record working time. According to the BMAS's ideas, the employer should only be allowed to reject the employee's claim for "compelling operational reasons". This would primarily affect companies in which mobile work is not actually possible (e.g. bakeries or craft businesses). Trade unions, works councils and staff councils should also have an enforceable right of co-determination with regard to the introduction and design of mobile work. If a corresponding law is passed at all during this legislative period, it is also conceivable that – similar to the entitlement to part-time work on a bridge – a "reasonableness limit" will be introduced, so that an entitlement to mobile work would only exist from a certain number of employees. It is also open whether the draft law will also lead to a flexibilization of the rigid regulations of the Working Hours Act.
