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

07 April 2021

Our employment experts in Germany answer key questions in relation to working from home and the future world of work.

In response to the pandemic, restrictions have been implemented internationally, often including the requirement to work from home where possible. As the vaccination programme is underway and restrictions are cautiously reviewed, we consider what the future world of work may look like and whether home working is here to stay.  
Do employees have a right to continue working from home after the lockdown restrictions have lifted?
Currently, a regulation of the Federal Ministry of Labour and Social Security stipulates that employers must allow work from home (see further information here). The regulation expires on April 30, 2021, if it is not extended again. After the expiry of the pandemic-related regulation, the general occupational health and safety rules continue to apply, which oblige employers to create a safe working environment and thus also to protect employees from infections. This can but does not have to be realised through remote work. There is therefore no entitlement to remote work. Nevertheless, to some extent, pandemic-related remote work will continue for the foreseeable future, especially in those areas where it has already been practised successfully for months. 

The question remains as to what the general legal framework will look like once a full return to normality has taken place, even if this will certainly still take several months. While some collective agreements already contain a right to work remotely, currently there is no permanent statutory right to work from home for all employees under German law. An entitlement thus only occurs if this is provided in the employment contract or in the form of a works-council agreement. 

However, there are plans to introduce a legal framework for remote work. As of January 2021, the ministerial draft proposal does not contain a legal right to work from home or to work remotely. Under the proposed rules, the employee may request remote work in writing. If the employer rejects the request, the reasons for this must be communicated within three months. If the employer fails to do so, the remote work is deemed to have been agreed (legal fiction) for a period of six month. It remains to be seen whether this provision will be passed by parliament or changed in the legislative process.

In practice, the shift from remote work to the office environment may be associated with managerial and legal challenges. Scale and severity depend on the degree of preparation by the employer and the terms and conditions set out in policies or contracts (see question 2).
Should employers have a policy dealing with home working and what are the key points?

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").

 
Can an employer require employees to work entirely or predominantly from home? Is employee consent required? What are the main risks?
Generally, there is no legal possibility for the employer to unilaterally require remote work and especially work from home (see question 2). Therefore, employee consent is required. 

Regardless of whether remote work is offered under the ministerial regulation, is partly to be continued after the regulation expires (see question 1), or becomes part of the "next normal", two separate aspects have to be addressed. First, the different working environment creates legal challenges, especially with regards to data protection, occupational health and safety and working time laws (non-compliance risks). Second, the work processes change considerably. The employer does not have the same degree of access to or control over the employee. Many are concerned about a perceived lack of accountability and decreasing quality of work (organisational risks). Both aspects can be mitigated by a legally compliant and therefore mutually agreed introduction or continuation of remote working and adapting the overall leadership strategy. Also, the blurred boundaries between the private and professional environment can cause serious issues for individual employees that should be taken into account. This applies especially to employees with caring responsibilities for elderly relatives or children.
Do employees have any entitlement to allowances/benefits if required to work from home?
In principle, the law provides for a general claim to reimbursement of necessary expenses. Nowadays, however, the question arises what expenses exactly incur for the employees through remote working, when most of them are equipped with a company mobile phone and flat rates for internet connections apply at home. Therefore, it may be agreed either in the employment contract or in the respective collective agreement that the employee shall receive a small lump sum compensation for the additional expenses of working from home. Such agreement is only limited by general laws, such as anti-discrimination law.
What are the key trends in relation to home working?
It is expected that remote work will become a regular way of working. In some sectors, mobile working without a fixed location is already considered a standard practice in some companies. This trend will continue to evolve and spread to other industries. However, "working where others go on holiday" poses considerable legal challenges, as increased workforce flexibility clashes with static legal requirements (for example, in tax and social security law).  Balancing these conflicts of interest will determine politics and characterize the legal debate going forward. 

The experience gained during the pandemic will certainly lead to lasting changes in travel behaviour and a significant reduction in business trips; travel expense guidelines are already being adapted. Inhibitions in the use of video functions have been reduced, so that in future face-to-face meetings will not take place to the same extent as before. 

Employers are considering the extent to which they still need office space. The trend shows that it is no longer mandatory for every employee to have a fixed office workstation; desk-sharing will increase significantly.

Get an insight into the current situation in other jurisdictions from our global legal team.

 

DWF Return to Work Hub

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