But what exactly does this obligation mean in practice? We give you an overview.

 

Principle

First of all, it follows from the regulation that the employer is in principle obliged to offer home office work to employees who are engaged in suitable activities.

It is important to note that employees do not have to approach the employer to ask whether they can work in a home office. Rather, the employer must actively approach employees and offer home office work.

Exception

Only if there are compelling operational reasons to the contrary the employer does not have to offer the possibility of working in a home office.

The ordinance does not specify what constitutes compelling operational reasons. Rather, employers must define this for themselves.

However, the FAQ published by the Federal Ministry of Labour and Social Affairs provides a little guidance on what is meant by compelling operational reasons. According to this, these are "provable and comprehensible operational reasons" because otherwise the rest of the business can only be maintained to a limited extent or not at all. The following are listed as examples:

  • Secondary activities associated with office work, such as processing and distributing mail
  • Processing incoming and outgoing goods
  • Counter services
  • Dispensing materials
  • Repair and maintenance tasks (e.g. IT service)
  • Caretaker
  • Emergency services

 

In addition, technical and organisational reasons can also be considered, e.g.

  • Unavailability of the required IT
  • Insufficient qualification
  • Necessary change in work organisation

These reasons, however, only apply until the impediment has been removed. In addition, data protection may also constitute a compelling operational reason.

The reasons for refusal must be documented. The competent authority may demand information from the employer in this respect and also the handing over of relevant documents.

It follows from the rule-exception relationship that the standard for refusal is very high and employers really only have to not offer the home office if an activity in the home office cannot be realised for operational reasons.

Enforcement options for employees

The ordinance does not provide for a subjective right of action for employees to enforce home office against the employer's will. However, employees have the option of reporting the employer to the occupational health and safety authority or the accident insurance institution if, in their view, home office work was wrongly not offered.

In addition, employees can also turn to the works council.

No home office obligation for employees

Employers are obliged under the ordinance to make employees an offer to work in a home office. However, employees are not obliged to accept this offer. For documentation purposes, however, it is best to record both the offer and the refusal in writing.

Agreement with works council required

Employees cannot freely or even spontaneously decide whether or not to come to the office. Without an agreement, employees may not simply stay at home and work from the home office. Thus, an agreement between the employee and the employer is required, setting out the details regarding working from home.

In companies with a works council, the employer may only offer home office if the works council agrees. A regulation is therefore required in the company, e.g. in the form of a temporary regulation agreement or a works agreement.

If no agreement is reached between the employer and the works council because there is disagreement on the home office regulations, the employer may not introduce home office, as otherwise it violates the co-determination rights of the works council. Therefore, even if there is no agreement with the works council, there is likely to be a compelling operational reason for not offering home office.

It is important to note that under the ordinance there is no obligation to agree on or set up a teleworking workplace in accordance with the workplace ordinance. It is therefore also possible to agree on mobile work.

Sanctions

Area-wide controls are not to be expected, but there will certainly be random checks. Especially since the issue is currently all over the media, employers are well advised to observe the ordinance and offer home office where possible. After all, the greatest risk of inspections and sanctions is likely to be when dissatisfied employees turn to the occupational health and safety authorities.

Since the ordinance was issued on the basis of the Occupational Health and Safety Act, the possibilities for sanctions also result from the occupational health and safety regulations. These can be, for example, a (temporary) shutdown of operations (but usually only after setting a deadline for the execution of the order) or a fine of up to EUR 30,000.00.

Recommendations for action

  • Analysis of the activities for which home office is possible as well as those activities for which there are compelling operational reasons for not doing so
  • Document the compelling operational reasons in writing
  • If there is a works council: conclude a regulation agreement or a works agreement on the temporary introduction of home office/mobile work
  • Written offer to the employees who can work in the home office, stating the conditions/details or reference to the collective agreement concluded
  • Documentation of the acceptance as well as the rejection of the offer
  • For employees who cannot/would not like to work in a home office, the employer must ensure that ten square metres per person are available when rooms are used by several persons. If this is not possible due to the activities to be carried out, other suitable protective measures must be taken, e.g. ventilation measures, partitions between the persons present in the room. In companies with ten or more employees, they must be divided into fixed work groups that are as small as possible. Contacts between the individual work groups in the course of operations and changes to this division must be reduced to the minimum necessary for the operation. If distances and occupancy regulations cannot be complied with, or if hazards from increased aerosol emissions are to be expected during activities carried out, employers must provide medical face masks, e.g. OP masks or FFP2 masks. Employees are obliged to wear the masks provided

 

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