The right to work mobile, from home, from Bali and the café? (April 2020)
In pre-Corona times the introduction should have been as follows: Sitting on the beach under the palm trees with your laptop on your lap while communicating with your boss via headset – which employee hasn’t dreamt of this? Thanks to digitalization, this dream could technically come true for many employees. But what about the legal requirements when employees are working from home? Especially during the current pandemic, the question of whether working from home is (legally) possible is more urgent than ever. Thus, we have summarized below our 5 key takeaways for home or mobile working.
Before we go into detail, it is necessary to define the terms “working from home” and “mobile working”: Working from home means that the employer provides the employee with a fixed workplace outside the company and the employee works from there. Mobile working, on the other hand, is when the employer allows the employee to perform his/her work (also) outside the company without setting up a fixed workplace for him/her.
> No statutory right to request home or mobile work
There is (still) no statutory right to work mobile or from home in Germany. Although the introduction of such a statutory right has been discussed recently, it has not (yet) become law. Thus, a contractual basis is always required if the employee wants to (or has to) resort to mobile working or working from home. Therefore, the employer cannot unilaterally decide that the employee works from home just as the employee (usually) cannot sue the employer to grant such a right. The parties must either agree upon this, i.e. conclude an individual agreement or, if a works council exists, the employer and the works council may agree upon a works agreement on granting the right to work from home and/or mobile working.
> German Working Time Act must be observed
A widespread misconception is that those who work from home or opt for mobile working have all the freedom and, in particular, are free to choose their working hours. However, the German Working Time Act also applies – at least if the employees work in Germany – to mobile and remote working employees. According to the Working Time Act, the working time, i.e. the time from the beginning to the end of work without the breaks, may not exceed 8 hours, exceptionally 10 hours. In addition, the employee has to observe an 11-hour resting period after the end of the daily working time. Especially the observance of the resting period is often a challenge when the last e-mail is written late in the evening and the next call is waiting in the morning. However, employers must know that they are responsible for compliance. Violations of the Working Time Act can result in heavy fines. It also remains to be seen how the German legislator will implement the ECJ ruling of 14 May 2019, according to which working hours (not just overtime!) are to be recorded using an “objective, reliable and accessible system”. Thus, the trust-based working time, which is a main characteristic of mobile or remote working, no longer seems feasible in its present form.
> Occupational health and safety regulations (partly) apply to mobile and remote working
The distinction between working from home and mobile working becomes particularly relevant in the area of occupational health and safety. If the employer sets up a home office, he must ensure that the workplace meets the requirements of occupational health and safety regulations. For this purpose, the employer must in particular carry out a so-called risk assessment when setting up the workplace for the first time, i.e., identify and eliminate risks in the home office. In case of mobile working, however, the employee will choose his/her own workplace. The employer’s obligations with regard to occupational health and safety regulations are limited here to instruction on safety risks and the provision of work equipment that does not pose a risk to the employee. The employee, in return, must inform the employer of existing risks and may not work under circumstances that are recognisably hazardous to his/her health.
> Accident insurance cover for remote workers?
As working from home increases, the risk for employees having an accident while working remote also increase. Statutory accident insurance covers accidents that are a “result” of the occupational activity. The decisive element for statutory accident insurance protection in the home office is what specific activity and for what purpose the employee is engaged in at the moment of the accident. According to the German Federal Social Court the way from the home office to the kitchen to brew coffee is not regarded as an insured operating distance in the domestic area. For this reason, it is advisable either to include employees in a group accident insurance policy of the employer or to recommend that employees take out a private accident insurance policy that also covers accidents in the home office that are not covered by statutory accident insurance.
> Data protection does not stop at the company gate
Observance of data protection regulations is paramount in cases of remote or mobile working. The employer is responsible for compliance with the provisions of the GDPR. So how can employers ensure compliance with the data protection regulations? If third parties (e.g. family members, flatmates) have access to the employee’s home office, the employee should ensure that the risks of unauthorised data access by third parties are minimised (e.g. locking the computer when leaving the workplace, locking the workroom when absent, making confidential telephone calls only when listening in is impossible). Personal and confidential data should only be processed directly at the employee’s home office. If this is not possible, the data to be protected should in any case be stored in a lockable cabinet. Finally, the employee should ensure that he/she destroys any documents that are no longer required in a manner that complies with data protection regulations (for example, by shredding the document into small pieces). The employee’s access to the employer’s systems should also be made possible via a secure access (e.g. VPN access) with robust access verification. In addition to encryption “in transit” of communication with the company network, the company terminals should have reasonable protection mechanisms (password protection, encryption).
For more information on how to comply with data protection regulations when working from home please see COVID-19 – Home Office – FAQ (DE).