Which labor law regulations will remain and when will the obligation to work from home (home office regulation) be lifted?

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Labor law has never been more fast-moving than in the past year. There have never been as many new regulations in labor law as in the last 18 months. Which new impulses labor law received in the pandemic and which regulations should remain even after Covid will be shown in this article.
Due to the Covid pandemic, new forms of collaboration have been established and perceived boundaries have been dissolved in flexible digitalization. This can be used as a global approach for recruiting and even to incentivizing employees. At the same time, this also raises the question of when certain Covid regulations – such as the home office obligation currently in force – will be lifted again.

More flexible forms of work have been established and will determine the world of work even after Covid
More flexible forms of work such as remote work and teleworking have been established overnight and are among the winners of the past year. It was much discussed whether employers can or have to mandate these forms of work during the pandemic, whether employees even have an entitlement to work from home or whether they have to follow a corresponding order.
We can conclude after more than a year that it worked better than we had thought. Nevertheless, there is a debate in Germany about whether this flexibility should be maintained even after Covid.
Working from home and the mobile office have changed the world of work sustainably and it is no longer possible to imagine the world of work without these forms of work. Regardless of a legal entitlement, a large number of DAX-listed corporations reported that employees may decide for themselves from where they work. Among others, the Deutsche Bank announced that home office should be an essential component of the new world of work with a quota of up to 40%. The availability of employees on-site has receded into the background and the use of saving potentials is becoming ever more popular thanks to desk sharing and the like.
This creates new opportunities also in other areas such as the internationalization of recruiting, the use of lower social security contributions in case of employment of employees abroad or the introduction of new forms of incentives, to name a few current issues. The latter, in particular, is subject of new discussions.
A new form of incentive may be that employers offer the opportunity to work from abroad instead of from Germany for a limited period of time, thus giving employees the opportunity to extend their holiday or stay abroad. This might be interesting from different points of view.
Also, the assembling of project teams beyond city and national boundaries has become more natural than ever. All this can be tempting for (agile) employers as well as for employees and creates a new perspective in addition to the classic advantages of the home office or mobile office (time saving, improved reconciliation of family and working life – insofar as it is possible within the company).

Nevertheless, all that glitters is not gold and in case of working from abroad, the legal requirements have to be borne in mind. In particular the labor law, social security law, tax law and immigration law issues have to be taken into account and companies are well advised to explore the mandatory guiding principles.
Our conclusion: The place of work will only play a subordinate role also in the future – and this is a good thing.

Exceptions to the home office obligation currently in force
Currently, there are already exceptions to the home office obligation. These exceptions are becoming ever more relevant, since there are also employees and employers who have missed the physical cooperation with colleagues or the advantages of an office in the last few months.
Exceptions exist if trade and business secrets cannot be sufficiently protected at home or data protection regulations cannot be complied with. Also, an internet connection insufficient for example for participating in video conferences, might be a reason that can be stated in favor of not working from home . The same applies to the mere lack of a place of work at home where the employee can perform their activities in a concentrated manner and without constant distraction. In these cases, employees may only use their office workplace.
The exceptions, however, are limited and the legislator’s current aim is to restrict contacts through the home office obligation as far as possible, at least for the duration of the pandemic.
Currently, there is neither an exception for recovered and vaccinated persons nor is the home office obligation linked to the coronavirus case numbers. This may change in the future.

Current and digital work of the works council
The coronavirus has proven to be a catalyst also in other areas. Thus, the works council work has become more digital overnight as well. The legislator revolutionized the digitalization in the works council constitution law and regulated that works council meetings including resolutions can be held/passed via video conferences and conference calls. The only prerequisite is that it is ensured that third parties do not gain knowledge of the contents of the meeting and no recording takes place. The past few months have shown that this kind of works council work is possible.
With this form of digitalized works council work, it is possible to be able to do works council work independently of the workplace. Also, conciliation boards could be carried out digitally via video apps. All regulations, however, only apply until June 30, 2021, even though a digitalization was overdue especially with regards to the conciliation boards.
It remains to be seen how the legal situation will evolve after that.

Health awareness in the company
The coronavirus also brought new occupational health and safety standards (such as maintaining the minimum distance, introduction of hygiene concepts – including, for example, setting up disinfectant dispensers. Disinfectant dispensers, thorough hand washing and regular ventilation will continue to play a central role in everyday and business life. This will be expected by customers in the future and a reduced occurrence of infection after coronavirus is to be welcomed with regard to sick days also from the employer’s point of view.
In addition, the importance of health protection could lead to employers providing other health offers (such as sports at the workplace, job bicycles etc.) in the future to ensure that the motivation and health of employees will be more actively promoted after the times of coronavirus than before.
In terms of labor law, there are various learning steps which the companies had to take in the past few months. In doing so, the positive experiences should also be part of a future corporate strategy. On the other hand, however, the pandemic has also shown that social events as a welcome change are missing in everyday working life and digital formats cannot replace them. In future, a mixture of the use of digital advantages and the (possibly concentrated) maintaining of personal contacts will be established.

Conclusion
In Germany, companies are trying to incorporate the lessons learned from the Covid pan-demic into their post-Covid strategy, regardless of the legal regulations. It is already apparent that the development has not yet come to an end

michaela.felisiak@bblaw.com

dominik.sorber@bblaw.com

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