The options for rendering work more flexible, including in terms of location, as a result of the continuing digitization, has already led in many cases to companies either making it possible for their employees to work in home offices or giving them a free choice overall where they perform their work. This form of organization, often regarded positively by both sides, regularly comes up against a statutory framework that has not yet adapted to this flexible working world. Problems arise here not least in terms of work safety and work protection regulations or the Working Hours Act. A recent decision of the Federal Social Court shows that the question of accident protection in the home office can also raise difficult questions (ref. no.: B 2 U2/15R).
An employee worked in her home office, which she had set up in the loft of her apartment. She left this home office to get water from a kitchen on the floor below. The inevitable occurred. She slipped on the stairs and injured herself. The statutory accident insurance denied that this was a work accident - and in the end it was endorsed by the Federal Social Court (BSG).
The BSG argued that the employee was not on a work-related journey at the time of the accident, but was rather in her personal living area. Nor was she exercising the activity insured in the context of her employment relationship at this time, but instead pursuing a typical domestic activity when she fetched water. In doing so she was not subject to any company guidelines or necessities. Work serving company interests in the home office did not deprive the apartment of its general character as a private, uninsured living sphere. The employee was responsible for the risks in the apartment herself. Since the statutory accident insurance could not take any measures to reduce hazards outside of the company premises of its members (the employers), it was also appropriate to assign this risk to the policyholder.
This outcome is hard for the employee affected, but appropriate. The protection of the statutory accident insurance only exists if the behavior leading to the accident can be attributed to the insured activity, which in turn brought about the accident. It must be decided in each case whether it is possible to assign a connection between the activity insured and the action that led to the accident. If the employee had fallen off her chair at her desk in her home office while reaching for a glass of water already there, it would be necessary to affirm the statutory accident insurance. When leaving the home office within the private apartment, this connection with the insured activity does not automatically exist.
The problem of this difficult, often hard to calculate delimitation between accident-insured company activity and uninsured private sphere does not just exist for employees in a home office they have set up, but also in particular in the case of the increasingly frequently used option of working outside of the »fixed« home office. The employee working at his laptop in his regular cafe who leaves his table to go to the bathroom (this too is a »private domestic activity«) will not be able to claim any accident insurance protection. But beyond trips to the bathroom, the effort required to demonstrate an insured work accident will also be much greater for the employee, because a defined working environment such as in the office or an established home office is lacking.
When introducing such flexibilization measures regarding the place of work, employers and employees should therefore take these problems into account and draw the attention of employees to the limits of the statutory accident insurance protection and possible alternative protection options.