Digital work: Working from home and on the go Protection duties of the employer (April 2020)
A look at the legal and factual implications of the ongoing digitalization of modern work
It is not just since the outbreak of the Covid-19 pandemic that working from home has been the expression on everyone’s lips. A legal right to (temporarily) work from home has been discussed for some time. In many companies it is already common practice to do some of the work “remotely”, i.e. from home or another location of the employee’s own choice.
But working from home raises many legal questions. In addition to aspects of civil law, working time and data protection law, occupational health and safety law in particular can pose challenges for employers.
I. General legal questions when working from home
Before the employer can approve work from home, numerous legal questions must be answered. Civil law (how and at whose expense is the workplace at home actually set up?), working time law (how does the employee document his working time?), data protection law (are business secrets, customer information and employee data secure in the case of remote access?) and last but not least occupational health and safety law. In the present case, the occupational health and safety law will be examined.
II. Occupational safety when working from home
The extent of the employer’s obligations under occupational health and safety law when an employee works remotely depends primarily on the scope of this remote activity. Whether and to what extent the Workplace Ordinance (Arbeitsstättenverordnung, “ArbStättV”) applies depends on whether work from home is the normal case or is only carried out occasionally.
1. Home as main workplace
If the employer and employee have contractually defined the conditions of working from home and the employer has set up a fixed screen workstation in the employee’s private area, this is a “teleworkstation” in the sense of sec 2 para. 7 ArbStättV. In this case, the ArbStättV also applies to the “office at home” to the extent that a risk assessment must be carried out (sec. 3 ArbStättV) and the employee must be instructed (sec. 6 ArbStättV). In addition, specific requirements for computer workstations must be observed (appendix 6 ArbStättV).
The employer’s obligations under occupational health and safety law are therefore also quite extensive when working from home. He must carry out a complete risk assessment of the workplace at home – if necessary also by means of an on-site inspection – and instruct the employee accordingly on this basis. In addition to the physical dangers, the employee must also be informed about the psychological risks of teleworking (keyword: isolation effect). Furthermore, all health requirements for the computer workstation (e.g. flicker-free screen, mirror-free work surface, ergonomic seating) must be complied with.
2. Occasional work from home
The situation is less clear if there is no teleworking, but only mobile work. In this case, the employee does not have a set up computer workstation in his private premises, but works mainly in the company premises and only from time to time from home or on the go using a notebook and mobile phone. The ArbStättV expressly does not apply to this mobile work.
However, the employer’s obligation to carry out a risk assessment does not only result from the specific ArbStättV, but also from the more general Occupational Health and Safety Act (ArbSchG). The prevailing opinion is therefore that a risk assessment and instruction in accordance with the ArbSchG, analogous to the ArbStättV, must also be carried out for mobile work.
However, this would completely contradict the systematics of the ArbStättV, which explicitly excludes mobile work from its scope of application. If the ArbStättV were formally left unapplied, but then the “back door” of the ArbSchG would lead to exactly the same employer obligations also for mobile work, the systematics of the ArbStättV would be taken ad absurdum. At the same time, however, the obligations arising from the ArbSchG cannot be ignored, certainly not with reference to a regulation which is below the law in the hierarchy of norms.
Therefore, it has to be evaluated on a case-by-case basis, which measures have to be taken. This should be oriented above all to the scope of mobile work. If mobile work is limited to occasional reading of e-mails on the smartphone, studying files on the train or the infrequent use of the notebook at home on weekends, it appears justifiable to dispense entirely with a separate risk assessment with regard to mobile work. The work is performed almost exclusively on the employer’s premises. Individual, rarely occurring activities outside the employer’s premises do not lead to a new/further workplace or a new/other activity. This means that there is no starting point for risk assessment, which must always be carried out in relation to the workplace and/or activity.
Something else will apply, however, if the main workplace is located in the company premises, but the mobile work is carried out on a larger, more regular basis (e.g. one working day per week). In this case, a further workplace will be added to the workplace in the business premises, so that this workplace must also be subjected to a risk assessment according to sec. 5 ArbSchG and the employee must be instructed according to sec. 12 ArbSchG.
However, a simplified risk assessment can be carried out here. Such a simplified risk assessment can be performed using a questionnaire. The employee’s duty of cooperation and loyalty obliges him to answer this questionnaire truthfully. The instruction can be given in abstract form. For example, the employee should be informed about ergonomic requirements for a workplace and receive general information about health risks and stress factors in mobile work. In addition to physical risks such as draughts or incorrect posture, this should also take into account psychological aspects such as the “dissolving of boundaries” of work (mixing of work and leisure time).
While a more comprehensive risk assessment and corresponding instruction is required for a real teleworking workplace, this can be done in a simplified form for regular but subordinate work from home. If work from home is only sporadic and not regular, there are good reasons why a risk assessment for this part of the work can be completely omitted.