Since the beginning of the COVID 19 crisis, the home office has been gaining popularity as an option to curb the spread of the coronavirus. Therefore, the share of companies setting up home offices has increased to 61%. Especially in times of crisis, it is important to develop ways to strike a balance between employer obligations and employee interests. Where the home office can offer both employer and employee more flexibility and freedom, new challenges may also arise for all sides.
Moreover, it is often not known that not all types of home office are the same. When actually, there are different models, each with its own conditions, which entail different risks. What distinguishes these models and what do you have to consider when implementing your own company policy on "home office"?
Usually, the term "home office" refers to teleworking, where the work is basically done in a private space, i.e. from home. There is also alternating teleworking, the unofficial light version of the home office, so to speak. This case consists of a mixture of home office and presence in the office and the office workplaces are usually used alternately by several employees.
Finally, you have the option of mobile work, which is often referred to as "remote work". Mobile work describes the location-independent work of the employee, sometimes at home, on the train, in cafes or "co-working spaces". One could say that the workplace moves with the employee.
In teleworking, the home office workplace must meet the same legal requirements as the company workplace (ArbStättV). This means that rest and maximum working hours must be adhered to, the home office must be equipped by the employer, it is subject to a risk assessment and, if applicable, there may be a claim for reimbursement of expenses for electricity, rent or utilities. It is recommended to seek advice from a tax adviser to check whether these costs are tax deductible for the employee.
The equipment of the home workplace is generally provided by the employer. Possible equipment includes technical devices such as laptops, mobile phones or printers, but also furniture, which can include a comfortable office chair or desk. These costs are usually regulated by a lump sum in the employment contract or the change agreement (see here for a template of a change agreement).
An advantage for the employee: depending on the model, the costs for the study may be tax deductible. The deductible amount is limited to only € 1,250.00 per year for alternating telework. Those who work completely from home can deduct the costs for the home office from tax without limitation. The prerequisite for tax deductibility is in any case that the study is furnished like an office and is used exclusively for professional purposes. A work corner in the living room is therefore not deductible!
Both in telework and mobile work, the statutory occupational health and safety regulations generally apply. However, the employee is largely removed from the employer's control. Thus, the constant availability through the mobile workplace entails the risk of exceeding the legally prescribed maximum working hours and, in particular, of not observing rest periods, for example.
It is therefore advisable to set up systems that guarantee the employee's safety at work, such as the introduction of core working hours during which the employee should always be available.
Relying on trust alone is not enough when it comes to data protection, as caution is needed in both telework and mobile work. However, the risk of data protection breaches may be lower with telework because the employee is working in a fixed environment away from third parties. In the case of mobile working, there is a higher risk that third parties will have access to the screen or that conversations will be overheard. In principle, it should therefore be expressly regulated in advance which precautions are to be taken to avoid precisely this. If necessary, the employer can provide a screen foil or a headset for this purpose. In addition, employees can be instructed on data security to the extent that, for example, no customer names may be mentioned during telephone calls or names and other sensitive data are made anonymous. In addition, further regulations on data security, user behaviour, access rights, etc. must be clarified. Ideally, private data should be strictly separated from company data and the private use of work equipment or electronic devices should be restricted. Finally, employees are obliged to protect company and business secrets even at home or when working on the move. It is therefore advisable to point this out separately.
Employers are not allowed to visit their employees in their own homes unannounced, as employees and their cohabitants are entitled to the right of domicile (protection of one's own home according to Article 13 of the German Constitution). However, since occupational health and safety also applies at home if teleworking has been agreed, the employer must ensure with the help of a risk assessment that his employees do not endanger their health at the computer workstation at home and even acts irregularly if he does not comply with this legal requirement. In addition, as described above, compliance with data protection and the related monitoring also apply in the home office.
It is therefore strongly recommended to regulate this complex circumstance in the supplementary agreement or internal home office policy. The employee's consent must be obtained so that the home office can be entered by agreement for the purpose of risk assessment or monitoring compliance with data protection provisions by the employer or its responsible person (e.g. company doctor, safety officer, data protection officer).
Co-occupants must be informed accordingly by the employee and must also agree in principle.
Nowadays, digitalisation makes it easy to work from home for many professions. However, flats are basically for living in. This means that the employee is not allowed to use the living space for commercial purposes without further ado. Accordingly, the landlord's consent is required if the home-based activity has an external effect as a commercial use of the home by customers or deliveries of goods, if structural changes are to be made for the home-based activity, or if neighbours could be inconvenienced due to increased noise, odour or high visitor frequency. Examples of this are guitar lessons in the rented flat, child minders for several small children or agency activities with a high volume of visitors.
On the other hand, the landlord's consent is not usually required for professional office activities in the domestic study, e.g. home office of employees, artistic, accounting or writing activities of writers, teachers, translators, experts, etc., as long as they do not constitute a nuisance for neighbours or have an external effect.
Then subscribe to our newsletter to stay up-to-date!subscribe now