December 16, 2022
My home is my castle - a legal assessment of working in home office.
Our working world is in a constant state of change. The Corona pandemic has had quite an impact on the handling and meaning of working from home. Whereas at the beginning of 2020 the question was still whether employees* could be obliged to work from home at all, now in 2021 there are already questions about a fundamental right to home office. In many companies, employees are now allowed to work from home on a permanent basis. If home office is used, both parties to an employment relationship must legally protect themselves. For example, one wonders what one's duties as an employer are under occupational health and safety law. But questions also arise for employees. Do kitchen tables and reading lamps have to be kept as work equipment or are employees entitled to proper equipment? What about increased electricity, gas and water costs?
What is a home office?
Home office is the colloquial term for domestic teleworking. According to section 2 (7) of the Workplace Ordinance (ArbStättV), teleworkplaces are computer workstations permanently set up by the employer in the employee's private area, for which a weekly working time and the duration of the set-up have been determined. The telework place is only considered established when the employer and the employee have reached an agreement on home working and the necessary equipment has been provided.
Do I have a right to a home office?
In Germany, there is as yet no legal right to home office and no uniform regulation. The introduction therefore requires a legal basis in the form of an agreement between the employer and the employee. This is possible either at the beginning of the employment contract or later as a supplementary agreement. Without a corresponding agreement, there is therefore no entitlement to home office. However, if employers do not comply with obligations under the labour protection law within the meaning of section 618 of the German Civil Code (BGB), employees have a right to refuse performance under section 273 of the German Civil Code (BGB) and could transfer their work to the home office even without the employer's consent. Given the current situation, this would be conceivable if, for example, no appropriate hygiene measures can be observed on site. However, if violations are only short-lived and without lasting damage, a right to refuse benefits would not be conceivable.
Do employers have to set up home offices? What about work equipment - what must be provided to the employees?
The aforementioned definition of home office raises the question of whether employers have to furnish the home office to employees, i.e. equip them accordingly with a desk, suitable desk chair, monitor, etc. as in the local office. In principle, this is to be answered in the affirmative, because the wording of Section 2 para. 7 2 ArbStättV cannot be interpreted otherwise ("permanently furnished by the employer"). If employers do not pay for the necessary work equipment, workers can demand reimbursement of expenses under section 670 of the BGB. However, purchases must be made in the predominant interest of the employer. Items that are also largely used privately are excluded from claims for reimbursement of expenses (BAG v. 12.4.2011, 9 AZR 14/10). The expenses must therefore be relevant for the completion of the employees' work duties. If employers provide employees with a fully equipped workplace in the company, no reimbursement of expenses arises if the employees voluntarily wish to work from the home office (BAG, 12 April 2011, ref.: 9 AZR 14/10 para. 32). However, the forced home office during the Corona pandemic often does not constitute a telework place within the meaning of the ArbStättV, as a duration for the home office could not be determined. It has been prescribed by many employers as a temporary but indefinite period . Depending on incidences, there was also ad hoc switching between office and home office. A fixed home office for a weekly fixed period did not exist among them. Whether the duties of employers standardised in the ArbStättV also apply directly in this case is debatable. In any case, employers cannot escape the obligation to provide the necessary work equipment at the home workplace (see BAG 14.10.2003, 9 AZR 657/02). If they do not pay for them, employees have a claim for reimbursement of expenses under section 670 of the German Civil Code (BGB), as shown above.
Can one be forced to work in a home office?
According to section 106 of the Trade, Commerce and Industry Regulation Act (GewO), employers may specify the place of work if there is no contractual agreement to do so. One might think that this could entitle the supervisor to order home office. However, according to a decision of the Berlin-Brandenburg Regional Labour Court (14.11.2018, ref.: 17 Sa 562/18), the unilateral transfer to home office by the employer is not covered by section 106 GeWo. After all, the home is also an area protected by fundamental rights, which is precisely not used for work. However, it could be argued that a unilateral order to work from home office could be covered by the employer's duty of care under labour law pursuant to section 618 of the German Civil Code. If there is an increased risk to workers' health in the workplace, working from home may be a way forward. In addition to duties under occupational health and safety law, employers also have a duty under the law of obligations to show consideration for the interests and legal interests of their employees under section 241 II BGB. These duties of consideration are based on a reciprocal relationship. For example, the employee must also work from home if this can prevent damage to the company. If a state order has resulted in the business having to be closed, an order to work from the home office is also covered by section 106 GewO. As long as the work can be done from the home office, it is not impossible to perform the work according to secrion 275 I BGB. The employee is obliged to continue to fulfil his performance obligations. Since the onset of the Corona pandemic, the SARS-CoV-2 Occupational Health and Safety Ordinance has stipulated that employers must make home office possible wherever feasible and offer it to their employees. This is now being changed with the new emergency brake. This regualtion moves from the Occupational Health and Safety Ordinance to the new Infection Protection Act. According to this, workers must accept the offer of home office in the event of an "epidemic situation of national significance", provided there are no reasons to the contrary. For reasons of space, a discussion of the quality of the legislative activities is omitted here.
Do workers have claims against employers for compensation for electricity/water etc. because of the use of the home as a workplace?
The employer must provide the workplace for the employee and bear the necessary costs (cf. BAG 14.10.2003, 9 AZR 657/02). Nothing else applies to the home office. In principle, the employer is responsible for setting up the home office and is also responsible for the associated costs. This includes not only the costs of the necessary equipment, but also the costs of electricity, heating and water. It should be noted that this only refers to the share that is attributable to the professional activity. The extent of these costs can be limited by agreeing on a lump sum for costs between the employer and the employee. The employer should not be placed in a better position by the home office, and the employee should not be placed in a worse position. The employer bears the costs in the same way as if the employee worked from the company workplace. As is the case with home office equipment, the employee has no claim here if a company workplace can be visited without danger (e.g.: no epidemic situation) and he voluntarily performs his work in the home office (BAG, judgement of 12 April 2011, ref.: 9 AZR 14/10 para. 32).
What about accidents at home? What occupational safety obligations apply in the home office?
The occupational safety obligations of the Occupational Safety and Health Act (ArbSchG) are not dissolved by the fact that the employee works in a home office. The employer must both continue to ensure the safety and health of his employees in accordance with section 3 ArbSchG and carry out a risk assessment of the workplace, section 5 ArbSchG. It must therefore be ensured that the workplace at home is appropriately equipped in terms of hazards and health. However, protection against domestic hazards is excluded because the employer has no influence on the employee's private sphere and there is no right of access. Any occupational health and safety obligations of the employee are thus limited to the workplace set up in the house. This also limits the statutory accident insurance. Employees are only insured in the event of an accident in the home office if the employee performs an activity that is closely related to his or her work. Thus, an accident in the kitchen while preparing food during the lunch break would not be covered, whereas this would be the case in the company kitchen. Occupational safety obligations are further weakened if the instruction of the place of work does not refer to the home office, i.e. working from home, but to free working, so-called "mobile office". In this case, the employer has even less influence on the specific place of work and its risk situation than in the home office. Since the employer cannot determine the exact place of work in advance, he only has to carry out a general risk assessment according to sectiom 4 No. 1 ArbSchG. Regardless of whether it is a home or mobile office, in both cases the employee has a special duty to protect himself (section 15 ArbSchG) and to report any hazards (section 16 ArbSchG9). Logically, the employer can only be required to do what is within his control.
Home office abroad?
If the employee works from abroad, social security and tax issues arise in particular. It is relevant how long the employee works from abroad and whether it is an EU country or a third country. In response to the Corona pandemic, the German Liaison Office for Health Insurance Abroad (DVKA) decided on 17.03.2020 that for cross-border commuters and those who are employed in Germany and reside in another Member State, the previous social security law will continue to apply within the EU, the European Economic Area and Switzerland if a period of up to 24 months is not exceeded. This is effective for the time being until 30.06.2021. However, it does not apply to employees residing and working in Germany who have remained abroad on leave. Here it is necessary to assess the facts individually. The basic rule for the EU is: If the employee performs more than 25% of his work, which is often seen as a period of three months, in the country of residence, he remains subject to compulsory insurance there (Article 13 (1a) of Regulation (EC) No. 883/2004). Outside the EU, it regularly depends on what agreement has been reached between Germany and the other country of activity. Under tax law, double taxation agreements must be observed. Germany has concluded these with a total of over 90 countries in order to avoid double taxation. If you are resident and employed in Germany and work in a home office in another EU country or in a DTA state, you are usually liable for tax there if you have worked from there for more than 184 days in the tax year (15 (2) OECD-MA). The German tax liability then does not apply. However, each case should be examined individually.
Precautions on data protection and cybercrime?
Companies must ensure that personal and business-related data is handled securely in the employee's home and that there is a secure internet connection. Data protection is thus also an important issue for work from home. According to media reports, the number of hacker attacks increased sharply during the Corona pandemic. If the employee processes personal data within the meaning of Art. 4 No. 2 of the General Data Protection Regulation (DSGVO), he or she acts on the instructions of the employer, who is then the controller pursuant to Art. 4 No. 7 of the DSGVO. If the employer company becomes the victim of an attack, it is liable to third parties for the resulting damage. In liability matters, the employer will have to prove the degree of its fault; here it must be clear that it took appropriate measures and did not act negligently. For this, it must be ensured that the employees are aware of the relevant data protection regulations and that the employees have also been instructed to comply with them. According to Art. 25 and 32 of the DSGVO, appropriate organisational and technical measures should be taken. One organisational measure would be, for example, a home office policy. This serves to raise awareness and has the potential to free the company from possible liability risks.
Company sports at home
Statistically, every person in Germany sits for an average of 7.5 hours a day. Company sport can therefore play an important role for employees in their working lives. It serves as a physical balance to regular work and can counteract illnesses such as tension and slipped discs, which can occur more frequently due to long periods of sitting at work. In addition, offering company sports is also advantageous for the employer, who can create a better working atmosphere and make the company more attractive to employees and applicants.
In order to qualify as a company sport, the activity offered must have a close legal connection to the work. Furthermore, the following points must be fulfilled cumulatively:
1. A measure to keep the employees healthy.
It is important that the sporting activity serves as a compensation for the work performed after work. The activity must represent a certain level of physical activity. More precisely, the sport must serve physical exercise, so that, for example, card or brain games cannot constitute company sport. It is also important that the physical activity does not serve as training for participation in a sporting competition or is considered a competitive sport.
2. Regularity of the event
It is also important that the company sport takes place on a regular basis. It is assumed that the event must take place at least once a month.
3. Company sport as a compensatory purpose
Furthermore, the sporting activity offered must have a compensatory purpose for the business activity and fulfil a corresponding connection.
Furthermore, the participants must be limited to the employees of the enterprise.
5. Work-relevant context
The exercise time and duration must be related to the work. It is irrelevant whether the exercise programme is offered before, after or during working hours. However, there must be a company-related organisation.
Due to the development of the pandemic, there are more and more online offers of distribution sports. If, for example, "yoga" is to be offered online as a company sport during the Corona pandemic, the following points must be observed:
The company-relatedness must still be guaranteed
It is important that the company-relatedness is still maintained when offering online company sport courses. This is not the case if the employer merely offers its employees an online sports course, leaving them free to choose when and how the course is to be conducted in the home office. Thus, if the employee organises regularly scheduled live courses which take place at a specific time with a constant duration, it is important that the simultaneous presence of the exercise instructor and the employees is guaranteed.
In order to be covered by accident insurance, the sporting activity must constitute a company sport. More precisely, the points listed above must be fulfilled cumulatively.
For the employee to be insured during company sport, the sporting activity must not only serve personal interests, but also be in the interest of the employer because of the compensation factor.
For employees, it is important that they regularly participate in sports activities or at least plan to do so in order to be covered by the insurance.
The insurance cover extends to all journeys made in order to be able to take advantage of the sports offer.
With regard to the online offer of company sports, all activities that are directly related to the practice of sports are still insured. However, since the sport takes place in the private domestic space, the preparation as well as the follow-up in the same room in which the exercise takes place is no longer insured in case of doubt.
• Preparation of individual employment contracts with regulations on home office
• Advice on setting up modern work structures and establishing corresponding legal procedures
• Preparation of home office guidelines
*If we use the generic feminine or the generic masculine in future, this always includes all genders. We female lawyers at KUHLEN are already so incredibly emancipated that we take the liberty of concentrating on the professional issues here.