We all have questions about our situation in the home office. Working from home has its pros and cons. Often we even don’t know about its legal framework. That is why we have invited the labor law expert Kevin Kessler from Arvantage Gastell Rechtsanwälte PartG mbB, a law firm specializing in employment law, to give us background information about this topic. In addition, Kevin provides helpful tips, what employers and employees should pay attention to.
EXPLANATIONS OF THE TERMS HOME OFFICE, MOBILE WORK AND TELEWORK
First of all, it is important to understand some related but different terms in this context. Home Office in the legal context means that employees can work from home – strictly only from home. In contrast, employees who have agreed on “ Mobile work” can work from anywhere, regardless of location. Telework requires health protection and workplace ordinance. When offering Telework to the employees the company has to comply with various obligations specific to the workplace. That means that the employer has to offer working equipment and furniture, and they have to make sure that the employees’ health is protected e.g. by checking if the distance to the screen is appropriate.
Since there are a lot of obligations which are very hard to fulfill by the employer, Kevin recommends to avoid using the term Telework in the employment contracts. Instead of Telework, Kevin recommends doing mobile work or home office with an additional agreement. The agreement should include all general rules and regulations such as working hours or reimbursement of expenses.
DO’s AND DON’TS IN HOME OFFICE
Generally employees should work 8 hours a day, have to take breaks and rest at least 11 hours until the next day. The employer does not need to check it but needs to at least have told the employees to do so.
There are no legal requirements on how to track working hours yet. But the court has stated that they are working on a law which will determine the regulations. Until that we recommend informing your employees that they have to track their hours in a written way like an email, an Excel sheet or simply on a piece of paper.
When it is necessary for the employee-employer relationship and reasonable, employees can reimburse expenses for work equipment. But this is only valid when this is not for the employee’s own use. The company should define rules, an amount of money (e.g. 50 euro/month) and a process in advance to avoid ambiguity, especially when home office is temporary during Corona.
Another important factor to consider while working in the home office is data protection. The employer remains responsible for data protection and compliance with GDPR regulations. The employer has to provide the employees with a company laptop and make them commit to GDPR. Again, you cannot control it, but you need the proof that you have informed them accordingly.
In addition, there is a lot of uncertainty regarding insurance in the home office. Basically, there is no difference between working in the office or from home. In the case that the employee has an accident at home he/she/they has/have to prove that it is related to work and is equally insured.
Especially in the current situation of Corona, a lot of companies have sent their employees to home offices. As an employer, we recommend you to inform your employees that they have to follow all the rules. When the Home Office situation is not temporary but your employees work from home on a regular basis, you should make sure that they have signed an agreement with all regulations included.
This will save you a lot of time and discussion in the future. All these recommendations should be taken under risk assessment. Usually it is in the interest of the work council that the company and the employees follow the rules and if not will inform authorities.
For more information also listen to our audio file. We carried out a Round Table with Kevin to covering this topic. The audience had many questions to home office and its legal aspects. This additional information might also be of help to you: