Work outside the workplace environment over the last few months of the pandemic has considerably contributed to the fact that, with the exception of certain sectors, large parts of the German economy have retained their capacity to work despite the lockdown. When it became clear in mid-March 2020 that the country would come to a standstill, the switch to mobile work was undertaken swiftly and on a scale as never seen before. Since then, employees have worked and continue to work to a large extent from home.
In the meantime, working from home has become a part of everyday life for many. However, this everyday life also raises more questions. In addition, the SARS-CoV-2 occupational safety regulations that have now been released by the German Federal Ministry of Labor and Social Affairs (Bundesministerium für Arbeit und Soziales - BMAS) explicitly address home offices, giving us cause to address the current focuses.
1. The employer’s responsibility under occupational health and safety law
The regulations of the German Workplace Ordinance (Arbeitsstättenverordnung - ArbStättV) apply to working from home if a tele-workplace has been set up in accordance with § 2 (7) ArbStättV. However, tele-workplaces are only deemed those which have been permanently set up by the employer in the employee’s private sphere, i.e. for which the employer has had the equipment, including furniture, work resources and communication facilities, installed under its own responsibility. In addition, a tele-workplace within the meaning of the ArbStättV presupposes a prior agreement between the employee and the employer.
Clause 2.2 of the SARS-CoV-2 occupational health and safety regulations clarifies that the home office frequently being used in the current pandemic situation is a form of mobile work in which the employee is temporarily employed in the private sphere, to the extent this is not teleworking. Portable IT systems (notebooks) are generally used for this mobile work.
The employer cannot evade its fundamental responsibility to take the necessary occupational health and safety measures (cf. § 3 German Occupational Health and Safety Act [Arbeitsschutzgesetz - ArbSchG]) by shifting work to the home office. However, the concrete form of the required measures for working from home also depends on the legal classification of the work in the home office.
For work in a home office, the requirements of §§ 15, 16 ArbSchG are of particular relevance. Employees must ensure their own safety and health at home in accordance with the employer's instructions and use the work resources made available to them according to their intended purpose. Employees must also support the employer in fulfilling the occupational health and safety obligations. Insofar, it is initially the employer's responsibility to issue instructions.
The SARS-CoV-2 occupational health and safety regulations to be taken into account in the current situation are - according to the BMAS - a concretization of existing occupational health and safety regulations. Clause 4.2.4 contains requirements for the instruction of employees in the home office, for example, on working hours to be observed or also an ergonomic workplace design.
On the whole, however, the employer faces a dilemma: the employee's home and the employee's private sphere enjoy the special protection of the German Constitution (Grundgesetz - GG). The employer is thus prevented, both factually and legally, from identifying, implementing or even monitoring necessary occupational health and safety measures in the home office without the employee's consent.
2. Employees’ claims to the reimbursement of expenses
The question of possible claims of employees to the reimbursement of expenses is also becoming increasingly virulent. If the employee mainly uses his private premises, the employer will soon be confronted with demands for the reimbursement of expenses or a flat-rate usage fee. The ancillary consumption costs such as electricity, heating or telephone also often become an issue.
Not only are the pro rata costs for telecommunications unlikely to be quantifiable in view of today's flat rates, but also a detailed billing of the pro rata consumption costs hardly seems possible. And even when purchasing new work equipment, such as office furniture or monitors, the employee's own interests are often considerable.
A flat-rate regulation should therefore be avoided. On the one hand, employees have the option of using flat-rate tax allowances (see https://www.oppenhoff.eu/en/news-detail/tax-aspects-of-remote-working-home-office). On the other hand, employees also benefit from the use of the home office in other - barely quantifiable - ways, for example, because the time spent travelling between home and work is eliminated.
3. Co-determination rights of the works council
While the employee representatives were solution-oriented and pragmatically supported the "relocation" of jobs to the domestic sphere at the beginning of the pandemic, after a few months of home office they are now asserting their co-determination rights. Even if a works council does not have a comprehensive and uniform right of co-determination with regard to regulations on the home office, or even a right of initiative, a multitude of individual co-determination rights arise from the German Shop Constitution Act (Betriebsverfassungsgesetz - BetrVG). These result from all areas of the shop constitution: for example, § 87 BetrVG, as the central provision of co-determination in social matters, requires the mandatory participation of the works council in questions concerning working time, technical facilities and health protection.
In personnel matters, the works council has a right of consent in case of employee relocations (§ 99 BetrVG). The co-determination of the works council may well not have played any or only a minor role in the change to the home office in view of the great dynamics in spring, but new issues are increasingly coming to the fore: does the employer's order to return to the company workplace trigger the works council's right of consent again? How is the works council’s co-determination if the employer only brings parts of the workforce back into the company on an alternating basis?
Finally, the possibly permanent changes in the company’s structure through the establishment or removal of home office possibilities may also result in co-determination rights in economic matters according to §111 et seq. BetrVG. This is particularly recognized in cases where the employer wishes to introduce genuine telework as a form of work.
4. Data protection / IT security
Moreover, data protection considerations regarding the use of possibly private hardware and software remain of great practical relevance and require clear specifications by the employer. For it is the employer that is and remains obliged under the GDPR to take appropriate technical and organizational measures to protect personal data. For the home office, the employer therefore has to provide clear specifications on access and access protection for the business equipment and documents by issuing corresponding guidelines. Increased requirements for working from home apply in this context to persons bound by a professional secrecy obligation. The overly careless handling of data triggers additional risks of criminal liability (see § 203 German Criminal Code [Strafgesetzbuch - StGB]).
In the last few months, so-called Covid-19 cyber attacks have also made the rounds. One focus of these cyber attacks is social engineering, which is designed to obtain confidential information from employees. For companies, it is therefore also vital that they continuously sensitize and train their employees in this respect.