AEmployers who force employees into the office are seen as a central problem in the current crisis by politics. At the deliberations of Chancellor Angela Merkel (CDU) and the Prime Minister on Tuesday, a resolution to counteract this was therefore high on the urgency list. There is now, Federal Labor Minister Hubertus Heil (SPD) signed a corresponding ordinance on Wednesday. According to this, employers must in future make it possible to work at home wherever the activities allow. However, there is no individual right to work from home.
“The regulation is knitted with a hot needle”, criticizes Gregor Thüsing, professor of labor law at the University of Bonn. Many things remain unclear – including how big the problem is. What now applies to employees and companies? WELT answers important questions.
Does the boss now have to enable home office?
Yes, the employer must offer employees the option of doing their job in their home – if it involves “office work or comparable activities”. The ordinance is to come into legally binding effect next Wednesday, limited to March 15. The employer can only refuse to work from home if there are “compelling operational reasons”. That is a new formulation, says labor lawyer Thüsing. “It is very extensive and should mean that the claim is almost always given.”
What reasons can the employer give to refuse to work from home?
Employers could cite a lack of technical equipment and data protection concerns, for example, but probably not permanently. Retrofitting with VPN tunnels, for example, will be necessary. Thüsing says that each individual case must be weighed up. “The principle is: The more sensitive and therefore more sensitive personal data, the more they have to be protected.” If an employee works with sensitive data and does not have his own office at home, then home office should be eliminated, says Thüsing – the risk of third parties gain knowledge by looking over the kitchen table would be too big.
Which controls are planned?
“My concern now is not to torment companies or to constantly control them,” said Heil. It is not checked across the board, but randomly and when there are indications of violations. The health and safety authorities are responsible. When asked, the employer must explain why he does not allow home office, says Thüsing. The authorities could prohibit work in the affected areas in the company. Fines of up to 30,000 euros are also possible.
What kWhat can employees do if the employer refuses to work from home?
After the Minister of Labor is introduced, employees should first seek talks with the boss and the works council. If there is no agreement, you can contact the responsible occupational health and safety authority. You have the option of monitoring the implementation of the regulation and, if necessary, also enforcing home office for individual employees. Heil emphasized, however, that it is not about an individual claim against the company.
Can employees be banned from the office now?
No, only the employer is obliged to make an offer. The employee does not have to accept that. If the employee does not want to work at home, for example because he finds the equipment inadequate, the company cannot force him; According to Heil, there is no legal basis for this. Thüsing says, however: “If pandemic protection cannot be achieved on site, then the employer may still be able to send the employee to the home office.”
Can the employee choose from day to day whether to stay in the home office or not?
No, according to the regulation, employees cannot simply switch between office and home office or decide spontaneously, explains Thüsing. “An agreement between employer and employee is needed in which the details are regulated,” said the labor lawyer. “The employer can say: either fully into the home office or not at all.” Whether that is wise is another question.
What does the employer have to do for those who cannot work from home?
If rooms are used by several people at the same time, ten square meters must be available per person. In companies with ten or more employees, these must be divided into the smallest possible, fixed working groups. If clearances and occupancy regulations cannot be met, employers must provide medical face masks. These include surgical masks and the FFP2 or KN95 / N95 masks that also protect the wearer.
“If the ten square meters don’t exist, simultaneous work is not permitted,” says Thüsing. For example, this could mean that working hours would have to be redefined in order to work in several shifts. It is possible that some employees would have to be sent to the home office against their will.
What does the new home office regulation bring?
The aim is to reduce contacts and avoid possible infections. How much home office can be achieved is unclear. “I cannot predict a fixed quota,” said Heil. Many companies are already acting in an exemplary manner, but there is “quite a lot of room for improvement”.
An investigation by the Hans Böckler Foundation is mentioned repeatedly in the debate. This speaks of “surprisingly low” use of the home office in November, ie at the beginning of the “lockdown light”. 14 percent of the employed persons surveyed stated that they mainly or exclusively work in the home office. In the first lockdown in April, it was 27 percent. Time and again, employees report on social networks that smaller companies in particular still have to be present in the office.
A study by Bonn researchers is also cited, which estimates the influence of higher home office quotas on the course of the pandemic. She assumes that with a rate of 25 percent, a permanent increase of ten percentage points from the end of January would mean that the number of new infections would be a good quarter lower at the end of February.
However, it is unclear whether the situation had already changed in the wake of the worsening pandemic and appeals from politics and social partners. Labor market researchers assume that more than half of the employees cannot work from home because their jobs are unsuitable for it.
What is the economy saying?
The Association of Family Entrepreneurs surveyed its members last week and came to the conclusion that the majority of companies enable their employees to work from home. According to the association, 75 percent of the 1086 companies surveyed stated that their employees were allowed to work from home. 25 percent stated that their employees have to come to their workplace.
Of the companies that do not allow home office, 82 percent said that their operational processes would not allow it. 55 percent said that the presence of employees in the company is very important. A quarter of those surveyed who do not allow home office also stated that the employees would not want to work from home, 17 percent said that the Internet supply in their region does not allow home office.
“We family entrepreneurs fear that this home office obligation will again entail a chunk of bureaucracy,” said the President of the Family Entrepreneurs Association, Reinhold von Eben-Worlée, WELT. In order to be prepared for controls by the occupational safety authorities, companies would have to meet enormous documentation requirements. “The government is fighting on the sidelines,” said Eben-Worlée. “While the politically responsible shoot at sparrows or companies with cannons, they leave the urgent tasks behind.”
Employer President Rainer Dulger said that in the past few months the German economy had created opportunities for home office and mobile work, “which our country has not known before”. Now, above all, the public sector is called upon to “develop a culture of mobile working like the private sector,” he said. The digital association Bitkom sees it similarly. President Achim Berg stated: “Most of the five million employees in the public sector could work from home because of their job, very few have been able to do so so far.”