After several attempts, there is now a legal obligation in Germany to work from home, via the occupational health and safety legislation:
According to Section 2 (4) of the new Corona Occupational Health and Safety Ordinance, which was promulgated on 22 January 2021, employers must offer their employees "in the case of office work or comparable activities, to carry out these activities in their homes unless there are compelling operational reasons to the contrary".
1. According to the Federal Ministry of Labour and Social Affairs ("BMAS"), "activities comparable to office work" are generally those that can be performed digitally from home (see the FAQs on the Corona Occupational Health and Safety Ordinance).
2. The ordinance leaves open what constitutes "compelling operational reasons". According to the view of the BMAS, which is not binding on the courts, these are "verifiable and comprehensible operational reasons" on the basis of which the respective activity cannot be transferred to the home office, in particular because otherwise the remaining operations can only be maintained to a limited extent or not at all. This includes, for example, processing and distributing incoming mail, processing incoming and outgoing goods, janitorial services, etc.
It is clear that the mere wish of the employer that all employees should work in the business does not constitute a "business-related" reason and a fortiori not a "compelling business-related reason". Due to the wording "compelling", a very high standard of review will have to be applied here.
3. In the view of the BMAS, the new regulation should result in a legal obligation of the employer to check, but not in a subjective right of action of the respective employee.
In the event of a violation of the new obligation to work from home, the employees concerned should inform the occupational health and safety authority. In the course of the subsequent review, the employer must explain and detail the compelling operational reasons for not allowing working from home. For the purpose of verification, the authority can then not only demand further information and documents, but also make use of its right to visit and inspect the premises, which will not be to the liking of many employers. Finally, the authorities can order the employees to work in their home offices and, in the event of a violation, impose a fine of up to € 30,000 per employee concerned and prohibit them from working in the company.
4. The affected employees themselves are not obliged to accept the employer's offer and work from home due to the above mentioned new regulation.
5. The form in which the working from home is to be offered and carried out is not specified in the ordinance.
In principle, there are two forms of working from home: on the one hand, the permanent establishment of a teleworking workplace pursuant to Section 2 (7) of the Workplace Ordinance and, on the other hand, a home office activity that does not meet the requirements of Section 2 (7) of the Workplace Ordinance. In the case of the latter activity, the home office does not constitute a "workplace", so that according to prevailing opinion the Workplace Ordinance is not applicable, but this does not release the employer from a risk assessment of the home office and the other obligations of the Occupational Health and Safety Act. Whether the offer of "mobile working" ("mobile office") also meets the requirements of Section 2 (4) of the Corona Occupational Health and Safety Ordinance is questionable in view of the wording "to offer to carry out these activities in their home". In the case of "mobile working", the employee decides for himself where he will carry out his work. This may well be in the employee's home, but also in any other place (café, park, train/plane, hotel, beach, etc.).
6. If there is a works council, its co-determination rights and other participation rights in connection with working from home must of course be observed.
7. Employers are strongly advised to provide comprehensive documentation in connection with the new obligations under Section 2 (4) of the Corona Occupational Health and Safety Ordinance. Not only the offer to the workers, but also their refusal, if applicable, must be documented. The "compelling operational reasons" which, in the employer's view, prevent working from home must also be documented for submission to the occupational health and safety authorities.
If the employee accepts to work from home, the parties to the employment contract should conclude a written working from home agreement that not only contains regulations on the place of work and the working hours, but also on the requirements for the off-site workplace, on a right of access of the employer / the authorities, on the work equipment, on the reimbursement of expenses (or its exclusion), on secrecy, on data protection, etc.
8. The Corona Occupational Health and Safety Ordinance came into force five days after its promulgation, i.e. on 27 January 2021, and is (initially) limited until 15 March 2021.
For further information and queries, please do not hesitate to contact us at any time at our offices in Berlin, Düsseldorf, Munich and Cologne. Of course, we will also be happy to assist you in drawing up the necessary working from home agreements and other documentation in connection with Section 2 (4) of the Corona Occupational Health and Safety Ordinance and, if necessary, in formulating works agreements and / or regulatory agreements with the works council in this regard.