Employment law aspects of the “new way of working”

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In response to the health and safety risks resulting from a potential coronavirus outbreak in the workplace, many employers moved to home office or mobile working concepts earlier this year. For many companies, this has now proven to be a successful new way of working. Employees turn out to be more productive and companies already see their chance of reducing office space and costs. The following article describes the labor and employment law aspects of the implementation of home office and mobile working concepts.

Home office vs. mobile working – what is the difference?
One of the central questions is what the difference is between home office and mobile working. In both cases employees work remotely outside of the employer’s company office. Home office work (also called “working from home” – WFH) means that the employer sets up a fixed workplace for the employee outside of its company premises. If the terms and conditions of the home office work arrangement are determined in an agreement between employer and employee and the provision of necessary office equipment and telecommunication lines is the employer’s responsibility, the home office work qualifies as so-called telework (Telearbeit) in accordance with Sec. 2 para. 7 of the Workplace Ordinance (Arbeitsstättenverordnung – ArbStättV).
Unlike in a home office setup, in a mobile working scenario employees do not work from a fixed place but can freely choose and switch between different locations such as the employee’s home, a customer’s office, a coffee shop, a shared working space, a hotel room or lobby, or even a train or plane.

Implementation
Home office work and mobile working concepts can be implemented in different ways.

  • The most common and highly recommended way is the conclusion of a home office/mobile working agreement between the company and the employee, either at the time of hiring or later as an amendment to an existing employment contract. For evidentiary purposes, a written agreement on the specific terms and conditions of the home office work is preferable over a purely oral arrangement.
  • In other situations, a works agreement or even a collective bargaining agreement may set out the general terms and conditions for home office/mobile work, which can then be referenced in a short agreement between the company and the employee.
  • There may be situations where the employer unilaterally instructs an employee to work from home or a place at the employee’s choice and no agreement is in place at all. Especially during the COVID-19 pandemic, many companies had to take a pragmatic approach and asked their employees to work from home literally from one day to another without having the time to produce policies or agreements.

In fact, unless the place of work is already defined in the employment contract, in a collective agreement or otherwise, Sec. 106 Trade Regulations (Gewerbeordnung – GewO) generally allows the employer to determine the place of work unilaterally using equitable discretion. Certain limitations arise from the special protection that an employee’s home enjoys pursuant to Art. 13 German Constitution (Grundgesetz – GG). In a pandemic, if health and safety cannot be sufficiently guaranteed in the company office, instructing an employee to work from home may be an equitable decision.
There is consensus that employees are not automatically entitled to work from home or otherwise remotely. Despite the lack of a general entitlement, under rare circumstances employees may be able to refuse to work from a company office and perform their work from home or elsewhere. This may apply, for instance, if the employer materially fails to implement necessary safety standards in response to a pandemic such as the technical, organizational and personal measures recommended by the Federal Ministry for Labor and Social Affairs.

Information and consultation/codetermination Obligations
In companies with works councils, employers have to be aware of certain information and consultation rights that have to be observed before implementing remote working concepts. The decision itself to implement a home office/mobile working concept is not subject to codetermination and works councils do not have a right to force employers to facilitate remote working. However, once the employer takes the initiative, information and consultation obligations under the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) may be triggered. Such obligations may result from Sec. 80 para. 2 BetrVG (general right to monitor employer’s compliance with laws and collective agreements protecting employees), Sec. 87 para. 1 BetrVG (codetermination right regarding various aspects such as rules of engagement during work hours, working time, implementation of electronic devices and software, health and safety at work, and remuneration), Sec. 90 para. 1 and 2 BetrVG (information and consultation regarding changes to workplaces and processes), Sec. 95, 99 BetrVG (approval requirement in case of assignment to new position or workplace), Sec. 102 BetrVG (notification requirement regarding potential terminations for change of conditions), and Sec. 111 BetrVG (consultation requirement in case of more substantial operational changes). As a general rule, works councils can force employers to complete consultation obligations before mobile working concepts are implemented.

  • Employer obligations and items to consider
    Whenever employers implement or operate remote working models, they not only have to inform or consult with their works councils. They also have a number of other legal obligations to comply with.
  • Health and safety: The employer’s obligations under health and safety at work law apply with certain modifications also in remote working settings. Employers have the general obligation to take necessary measures to ensure or at least improve safety and health protection at work (Sec. 3 Health-and-Safety-at-Work Act (Arbeitsschutzgesetz – ArbSchG)). Work has to be structured in a way that hazards for life or physical and psychological health can ideally be avoided; remaining hazards need to be kept at a minimum (Sec. 4 no. 1 ArbSchG). Employers have to carry out risk assessments in accordance with Sec. 5 ArbSchG. Since the employers’ ability to perform such a risk assessment in a remote working environment is naturally limited, it is widely accepted that for the risk assessment they can rely on information specifically obtained from the employee for this purpose. In a mobile working setup, it is even more difficult for an employer to perform a risk assessment taking into account that the employee can freely decide where he or she wants to work at any given time. On that basis, the employer’s obligation to properly instruct the employees in accordance with Sec. 12 ArbSchG as well as the employees’ obligation to protect themselves against hazards (Sec. 15 ArbSchG) and notify employer or manager of any imminent danger for safety and health (Sec. 16 ArbSchG) play a greater role than in an office setup.
  • Working time: The fact that in a remote working setting employees are given the freedom to work either from home or any other location of their choice does not eliminate the mandatory nature of existing working time laws. Employers and employees still have to ensure compliance with the daily maximum working time, break times, minimum rest times between daily work cycles and the general prohibition to work on Sundays and public holidays. The employer has to take appropriate measures to ensure that working time requirements are complied with and that working time is properly recorded.
  • Working equipment and costs: As a general rule, the employer has to provide the necessary work equipment. Employees incurring additional expenses have a statutory entitlement to get reimbursed for these. This may apply especially in situations where employees bring their own devices (which may cause a number of issues especially when it comes to data security or the return of confidential information). Often, employer and employee agree on a lump sum cost reimbursement in advance. The tax treatment of both the provision of company equipment with a right to private use and the reimbursement of costs needs to be carefully considered.
  • Confidentiality and protection of (sensitive) data and knowhow: Remote working is subject to the same legal rules in terms of data privacy and the protection of trade and business secrets. However, since the employer’s ability to monitor the employee and take corrective action is limited in a home office or mobile working setting, the employer is well advised to assess in advance whether a job is actually suitable for remote working. It is, for instance, recommended to exclude departments and positions from remote working that to a large extent handle customer or (sensitive) employee data. In addition, it is recommended to provide for additional training and give clear instructions in order to create awareness of the specific risks that personal data and knowhow are exposed to in a non-office work environment.
    While home office or mobile working come with a number of benefits, there are also additional legal obligations that employers need to be aware of and practical recommendations that should be observed at an early stage. Besides taking appropriate technical and organizational measures, employers are well advised to put proper contractual arrangements in place that not only define the rights and obligations of the parties but also allow the employer to end remote working arrangements in a flexible manner, if needed.

hkoeckeritz@mayerbrown.com

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