Germany: Preparing for the return to work and the "next normal"

There are three ways to introduce and regulate remote work. It should be noted that without a proper regulation remote work cannot legally be introduced and should therefore be avoided. 

Firstly and the most common way is the introduction of an agreement in or an amendment to the employment contract. This can be supplemented or replaced by collective agreements (e.g. collective bargaining agreement or agreement with the works council). 

Secondly, the introduction by unilateral instruction of the employer is also being discussed, at least as a reaction to the emergency situation caused by the pandemic. However, the employer's right to issue instructions does not extend to the home, which is specially protected by the constitution. The vast majority of experts are in agreement that there is no way for the employer to unilaterally require remote work and especially work from home as a general rule. This assessment is also supported by court decisions in recent years. In some publications, an extension of the right of instruction is suggested in emergency situations, for example, if the employer would violate health and safety regulations by allowing work in the office. This has not yet been resolved by the courts, though. 

Thirdly, if working from home is to be allowed, a policy laying out the basic terms is advisable as a minimum measure, although the introduction and regulation of remote work via individual and/or collective agreement is always preferable. The content depends on the extent to which remote work is to be permitted.  The following aspects should be considered:

• Eligible group of employees
• Application procedure
• Duration
• Requirements for the workplace (Health & Safety)
• Equipment
• Costs/reimbursement of employee expenses
• Extent of mobile working
• Working time 
• Termination of remote work
• Control regulations

The provisions for termination and scope are particularly important when returning to normal office life. A well-drafted agreement allows the employer to maintain the option of having the entire workforce or only individual groups of workers (without discrimination, of course) return to the office. With sufficient preparation, permanently maintaining work from home is also an option. Upon agreement with the employees and, if necessary, the works council, it is also possible to limit the extent of remote work (i.e. "two days of on-site presence per week").