Home office - not only an option in times of COVID-19

 Andreas Kössel

Andreas Kössel

Home office was already in vogue prior to the Corona crisis. Due to the current situation, the German minister of employment, Mr. Hubertus Heil, wants to legally establish the right to work from home. This right is planned to be valid also once the crisis is over. But what needs to be considered from a employment law perspective in order to introduce home office legally?

Home office - not only an option in times of COVID-19
Home office - not only an option in times of COVID-19

28.04.2020 | Employment Law

In times of COVID-19 it is recommended to anyone who can work from home to do so, regardless of whether someone shows any symptoms or features of groups at-risk. In order to prevent a collapse of the health care system, it is highly important to keep the infection curve as flat as possible from the very beginning.

Due to modern technology, such as laptops, broadband internet, cloud-based systems and more, barely anyone is still bound to a fixed workplace anymore. Even prior to the crisis, more and more employers started to give their employees the choice of where to work. The possibility of working from home makes a job more attractive and might increase the employee’s satisfaction. Apart from pandemics, home office can be an interesting option as it enhances flexibility, greater self-determination and work-life balance.

Approximately 20% of employees in Germany are used to work remotely from home several times a month – home office became already popular before COVID-19 caused to re-think. However, anyone who is considering home office as an option must keep the legal and organizational framework in mind.

1. Who decides whether employees may work from home or not?

Currently, employees are not entitled to a mobile or home-based workplace. Ultimately, it is the employers who decide about how their employees are organized – even in times of a crisis. However, if home office is – to a certain extent - already granted or tolerated without the legal basis, the demand for home office might grow due to the so-called operational practice (“betriebliche Übung”).

2. What has to be legally considered if employees take their work home?

Employees who take home sensitive information, such as printouts, files or forwarded e-mails, risk to face employment law related sanctions - depending on the scale of sensitivity even their termination of employment. Therefore, employees are well advised to consult their employer in advance in order to determine whether and which company documents they are permitted to take home. Employers, on the other hand, should bear in mind that even a tacit acceptance of home office can cause an increase of demands to work from home. In case there are no rules, home office should only be an exception.

3. Which conditions must be met for home office?

Principally, the employee's working field must be considered as suitable for home office. Company schedules, external customer appointments or meetings still should have priority. If home office can be integrated properly into the company processes without any disturbances, work efficiency will not be affected and the employee’s performance at home can absolutely be as successful as in office. However, an absolute must is the availability of adequate and properly functioning hardware, such as a pre-set mobile device and a sufficiently fast internet connection. Hardware and software conditions must guarantee a secure connection to the corporate database and the communication network as well as a safe way for data backups.

4. How to record the employee’s working hours?

According to the decision of the European Court of Justice of 14 May 2019, working hours from home must be recorded accurately as well.

The usual requirements, such as maximum working hours per day (maximum 10 hours), sufficient rest periods (at least 11 hours) and the ban on working on Sundays or public holidays have to be carefully attended to. A small hint: Compared to employees who work in the office, those who are working from home or on the move do work about four hours more per week on average.

In addition to the Working Hours Act, the employer is also responsible for occupational safety measures, including risk assessment, protective measures, instructions and regulations for computer workstations – especially with regards to home office workplaces. The employees themselves are obliged to ensure the requirements for a safe workplace.

5. Which measurements have to be followed to ensure data protection in times of GDPA

The employer is obliged to take the required preventive measures to ensure the corporate data protection. Safe approaches include for example VPN connections for secure data transfers and the only use of software or files that are approved by the employer himself. Further, the employee has to ensure that no unauthorized person, including family members, have access to any mobile device in use. In addition, passwords must not be passed on and must be kept inaccessible to third parties. It is recommended to not install unsafe (social media) applications or services, such as WhatsApp on the work mobile, as this way confidential (contact) data might be revealed.

Apart from the obligation to protect corporate data the employees themselves have also the right to protection of their own data and privacy. This means, that the employer may only control equipment and work performance in compliance with applicable data protection regulations.

6. Does the works council have a voice in the topic of home office?

The works council has no say when it comes to the decision for or against mobile working as such. However, the works council does have an influence in some factors, such as working hours, the use of technical equipment (not yet subject to co-determination), the prevention of work-related accidents or transfers. Therefore, the works council has to be involved in the planning process. The employer on the other hand is obliged to provide respective information to the works council which then has to ensure proper conditions of the (mobile) workplace.

7. Who has to bear the costs of mobile equipment?

In case the employee is allowed to work from home, the employer has to bear the respective costs This includes the costs for office and technical equipment as well as telecommunication costs. No matter if the employer is providing all necessary equipment, the employees are using their own devices (“BYOD - Bring your own device”) or both parties agree on a mixture of own and corporate equipment, a contractual basis of the conditions is essential.