Returning to the office after remote working: What to consider

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In many businesses employees have been employees have been asked to work remotely (also known as “working from home”) during the current COVID-19 pandemia. Depending on the nature of the work, business could potentially be continued with employees working from home instead of ceasing business activities entirely. Now, as the measures to contain COVID-19 are beginning to be eased, a return from remote work to the office is on the agenda in many businesses for many reasons, whether for the fact that many businesses still have a “presence culture”, due to cabin fever among the workforce, or other reasons.
From a labor law perspective, the question now arises as to which conditions the employer may order.which conditions the employer may order its employees to return to the office and what protective measures have to be (or at least should be) taken in this context.

Remote work from a general labor law perspective
Except for particular positions (e.g. field sales agents, service technicians) the employees’ place of work usually is at the employer’s premises. This may either follow from a respective provision under the employment agreement or from a respective order by the employer based on his statutory authority under sec. 106 of the German Industrial Code (“Gewerbeordnung” – “GewO”).
As far as the employees now are obliged to perform their work activities away from the employer’s premises, (e.g. for reasons of health protection during the COVID-19 crisis), the employer may instruct the workforce to work from home for a preliminary period of time due to its aforementioned authority (an amendment to the employment contract is required only if employees shall henceforth work from home on a permanent basis, which cannot be instructed by order of the employer).
Especially in a situation such as the COVID-19 pandemic the employees are obliged to follow a respective decision and cannot refuse to work from home preliminarily (it can hardly be imagined that working from home is absolutely unbearable for a limited period of time).
On the other hand, employees are generally not entitled to work from home at their own discretion without the employer’s consent. This only may be the case exceptionally, e.g. if it is unacceptable for the employee to work from the employer’s premises for hygienic reasons, etc.. Apart from this, working from home requires the employer’s express consent.
Except from a different place of work, working from home implies no alteration to the existing employment relationship between the parties. All applicable regulations under the employment contract, as well as under statutory regulations remain in force. This especially applies to regulations concerning working time, data protection, occupational safety or any co-determination rights of the works council. In addition, the employees even could claim a reimbursement of expenses as far as additional
as far as additional costs actually accrued by them (e.g. for additional communication lines, office supplies etc.). In order to avoid disagreements concerning these aspects, it seems useful to regulate them in a reasonable manner.

Return to the office from remote work
As far as working from home has been instructed by an employer’s unilateral order, generally the termination of remote working and return to the office can also be instructed by such an order. Nevertheless such an order can only be regarded as permissable as far as a return seems reasonable from the employees’ perspective. Against the background of COVID-19, this means that the employer must make sure that those reasons for which remote working was introduced (risk of infection etc.) no longer exist or are at least being mitigated. If remote working was introduced by a respective agreement amending the employment contract, the return to the office is subject to the specific regulations under the agreement. These may be particular conditions under which the employer may order the employee to return, or simply the expiry of the term for which remote working has been agreed to.
As far as these requirements are met, the employees are obliged to return and are not entitled to continue working from home. In particular, an entitlement to continue working from home under certain aspects of company practice (“betriebliche Übung”) cannot be acknowledged unless for very exceptional cases. In such cases, only dismissal with the option of altered conditions of employment could effect a termination of remote work.

Occupational health and safety – employers’ duties
When the employer instructs its employees to return to the office, the employer is obliged to provide appropriate measures to ensure occupational health and safety. In the context of COVID-19 this means that the employer must at the very minimum take specific measures to reduce the employees’ risk of infection with COVID-19.
With respect to COVID-19, it therefore is to be recommended that the employer undertakes a respective risk assessment (“Gefährdungsbeurteilung”) pursuant to the German Occupational Safety Act (“Arbeitsschutzgesetz”) and issues an action plan, taking into consideration the respective guideline which has been issued by the Federal Labor Ministry (the “SARS-COV-2 Arbeitsschutzstandard”).
This action plan, which is to be formulated by the employer in cooperation with the works council, the occupational health and safety specialist (“Fachkraft für Arbeitssicherheit”) and the occupational physician (“Betriebsarzt”) must contain particular technical, organizational and individual-related arrangements.
Regarding particular technical measures, the work spaces must be arranged with sufficient distance between employees, effective ventilation must be provided and physical meetings and business trips should be reduced as far as possible.
From an organizational point of view, for example, all work equipment is to be disinfected periodically, shift work and respective working time schedules should be introduced in order to not have too many employees on site at the same time. Also, procedures which govern the handling of suspected cases of infection must be stipulated in particular.
Lastly, as regards individual-related measures, protective equipment such as masks must be distributed to the employees. In addition, the workforce must be informed appropriately about the protective measures and be trained respectively, and special arrangements for particularly endangered employees (e.g. people suffering from asthma) must be made.
Should the employer fail to follow the aforementioned guidelines and to take appropriate measures, the employees are entitled to refuse to return to the office. Furthermore, as far as damages occur due to the employer’s failure to take appropriate steps, the employer may also be liable for damages.
As pointed out, the employer may generally instruct its employees to return from a preliminary remote work to the office in the course of the current easing of the COVID-19 measures. This however requires that the employer implements measures to ensure occupational health and safety according to the “SARS-COV-2-Arbeitsschutzstandard” issued by the Federal Labor Ministry.

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