Home office under german law

Current legal situation in Germany: A right to work from home, or even a duty to do so?

In Germany, around 27.9 percent of employees currently work from home. In contrast to the Netherlands, Germany does not yet have a legal right for employees to work from home. In our neighboring country, the legal right to work from home was introduced in 2015.

Anyone in Germany who currently wants to work from home needs the consent of their employer, who is allowed to decide whether it is possible for their employees to work from home. Employees therefore cannot demand that the german company allow them to work from home.

However, employees have an opportunity to influence the home office option to the extent that, as a works council, they can have a say in the design of mobile work in accordance with the german Betriebsrätemodernisierungsgesetz (Works Council Modernization Act) (Section 87 (1) No. 14 BetrVG). However, this does not affect the employer's authority to decide on the "whether" of work from home. The works councils can only influence the content of the home office, i.e. the "how" (including working hours, place of work, attendance duties, accessibility, work equipment, safety in the home office).

As a law firm specializing in german labor law, we advise and represent companies and employees in all matters relating to the employment relationship in Germany.

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Corona: State of emergency - Can I demand the home office from my boss in Germany?

The current Corona situation in Germany, including the new regulations of the German Infection Protection Act, has temporarily resulted in employers being obliged for infection protection reasons to offer their employees - insofar as the employee activity permits - the home office option. As a result, german employers must offer the option of working from home for office work or comparable activities. Provided that the employee can also perform his or her work from home as usual, the employer must therefore allow his or her employees to stay at home according to german law.

However, this does not mean that employees can demand or even force their bosses to allow them to work from home in the future. German labor law does not recognize any so-called customary law. In any case, the period of time during which the Corona Occupational Health and Safety Ordinance applied was far too short to establish such a right in german practice. In addition, there is still no right to work from home and this is unlikely to change in the foreseeable future. So anyone who wants to sue for a right to a home office in the near future - a right that exists in his or her opinion - has a bad hand and would have to be able to pull an ace out of his or her sleeve to do so.

A legal claim to home office in Germany only arises if a corresponding agreement is stipulated in the employment contract, in a collective agreement or in a company agreement. The German Infection Protection Act has not changed this, and the regulation to enable mandatory home office was limited until March 19, 2022, and has not been extended.

Regulations on home office in the german employment contract

If the employer allows its employees to work from the home office, it is advisable in german practice to record corresponding agreements in the employment contract. It is important to ensure that the regulations regarding the circumstances and requirements for working from the home office are defined as precisely and specifically as possible. What should be regulated in any case are the time scope of the home office, the availability at home and the documentation obligation of the employee.

The employer in Germany can also offer trust work within this framework, i.e. the employee is allowed to arrange his or her own working hours. However, a provision should then also be made for self-determined overtime. In addition, it should be stipulated that in the home office the employee must comply with the obligation to document working hours according to german law. Furthermore, in terms of technical occupational health and safety, it is advisable to prohibit the use of private work equipment. In addition, it may also make sense in terms of occupational health and safety in individual cases to include a contractual right of access for the employer in the contract in order to be able to identify possible hazards in the workplace and ensure data protection.

If there is a works council in the german company, the requirements and conditions for working from home can also be set out in a works agreement, which in german practice can be specified and supplemented at any time by individual regulations. However, if teleworking is agreed therein, the employee cannot decide on his own initiative that he simply works from abroad, as problems may then arise from the perspective of labor law, social security law and tax law in Germany (keyword = permanent establishment abroad) (ArbG München, judgment dated August 27, 2021 - 12 Ga 62/21). In principle, therefore, the german employer continues to determine the place of work, not the employee.

Announcement of a reform in Germany: Right to home office to become law soon?

German Labor Minister Hubertus Heil has spoken out in favor of making home office a permanent feature of everyday working life in Germany in the future. In his view, german employers should in future be required to allow employees to work from their own four walls, provided there are no operational reasons to the contrary. As an example of such an exception, he cited steel mill workers, who of course do not have their own blast furnace in their backyard at home and therefore cannot work from home in Germany. But in the event that there are no operational reasons to the contrary, german employees should have a basic right to work from home. This could give many people the chance to work from home even after the pandemic.

Heil told the Deutsche Presse-Agentur that "fundamental consequences for the german work environment" are to be drawn from the corona-induced unplanned large-scale trial of the home office in Germany. Accordingly, he said, the new government would create "modern rules for mobile working in Germany" and a legal right to work from home.

The main legal consequences of home office under german law:

Even though working from a home office is an unfamiliar situation for most employers as well as employees, which poses challenges for both sides, employers must ensure legally compliant working under german law. After all, german labor law requirements must be complied with even if the employee's own home is the new workplace. In order to avoid fines in Germany, occupational health and safety and data protection regulations as well as working time regulations should be observed in the home office. These obligations arise primarily from § 3 ArbSchG, § 2 para. 7 ArbStättV as well as Art. 25 para. 2, Art. 32 DS-GVO and also apply in principle if employees work in their own home office in Germany.

Accident at work in the german home office

What happens if I fall down the stairs on the way to my home office in Germany? Am I covered by accident insurance then?

When working from home, professional and private activities merge seamlessly. In german practice, there is regularly a lack of clarity about insurance coverage when an accident occurs away from the business environment, exceptionally in the home office. An accident resulting from an insured activity is generally defined under german law as an occupational accident and is therefore covered by the statutory accident insurance. In the case of accidents, those activities and actions in the home office which, according to the employee's objective tendency to act, were carried out in the interest of the employer are covered by accident insurance in Germany. In other words, all journeys and activities that were directly related to the work, such as sitting on the ergonomic sitting ball, going to the printer or to the cabinet with the files, are insured. However, it became difficult to assess whether the walk to the coffee machine, to the kitchen or to the toilet was included in german practice. On-site at the company in Germany, these routes would also be covered by the insurance, but in the home office, this was previously disputed.

However, in June 2021, with the enactment of the Betriebsrätemodernisierungsgesetz (German Act on the Modernization of Workplaces), extended accident insurance coverage was introduced for german employees who work from the home office. § Section 8 (1) sentence 3 SGB VII reads as follows: "If the insured activity is carried out in the insured person's home or at another location, insurance coverage exists to the same extent as if the activity were carried out at the business location." As a result, all activities in the home office are now also subject to insurance coverage that would also be insured in the same way if they were performed at the company's premises in Germany. This new regulation does not apply to accidents that occurred up to and including June 17, 2021.

So if you fall down the stairs on the way from your bed to the home office in order to get to the office, which is on another floor, it is an occupational accident that is covered by statutory accident insurance in Germany (BSG, ruling of December 8, 2021 - B 2 U 4/21 R). It is virtually an accident protection also before the start of work in the home office.

As a result of the new german law, accidents on the way out of the home office and back are now also insured, provided they occur in order to bring the children into the care of others as a result of the professional activity in the home office on the same day, e.g. to the kindergarten or to the daycare provider. This again does not apply to accidents that occurred up to and including 17.06.2021.

Setting up a workplace in Germany (tax deductions?)

Who among us has a fully equipped home office at home, from which we can do our office work to the same extent as at work? Well, most of us rather not. Thus, in case of need, work equipment has to be purchased on one's own pocket. In addition, electricity and Internet costs inevitably rise. What costs does the german employer have to bear and what materials does he have to provide?

If it was mutually agreed to work in a home office in Germany, the employer generally bears the costs incurred by the employee in order to fulfill his or her work duties as usual. Contrary to what one might assume, employees are not obliged to use their private computers, smartphones or tablets; rather, these must be provided by the employer. The use of private end devices can even be problematic under german data protection law. However, this does not mean that the employer must directly purchase a new computer. Renting or leasing equipment is generally sufficient in german practice. With regard to electricity or Internet costs, a flat-rate usage fee can be agreed with the employer in individual cases.

In addition, working in a home office can also be declared in the german tax return. A home office recognized for tax purposes is generally deductible in Germany. But what about working from the sofa, kitchen table or sun lounger on the terrace? These "workplaces" cannot be claimed as a workroom for tax purposes under german law. Since the end of 2020, the home office flat rate has been available for this purpose, whereby a maximum of EUR 600 per year can be claimed for tax purposes at EUR 5 per home office day. However, this lump sum is not to be seen in addition to the employee lump sum of EUR 1000; rather, it is included in it. As the home office lump sum was brought into being by the pandemic, it is only of a temporary nature in Germany. For 2022, however, it should still be possible to claim it as part of the income-related expenses. But beware. This lump sum is only available to those who worked in a home office, but not to those who worked on a mobile basis.

Access regulation / occupational health and safety in Germany by the employer

Even in the home office, german employers must ensure the occupational safety of employees and eliminate potential hazards. According to § 5 ArbSchG and § 3 ArbStättV, the employer in german practice is obliged to find out which occupational safety measures are necessary and to carry out a risk assessment (e.g. with regard to poor monitor positioning or the lighting conditions).

For this purpose, however, he does not necessarily have to personally inspect the home office workplace, but he must ask the employees about the workplace situation and provide appropriate instruction to the employees, also with regard to the requirements of the German Ordinance on Industrial Safety and Health (Betriebssicherheitsverordnung) for work equipment. For this purpose, employees in Germany can be given questionnaires to answer themselves or checklists. Ideally, these should be tailored to the respective work variant (teleworking / home office / mobile working). Questions about occupational health and safety could relate to the positioning of the monitor, the workstation height, the lighting or the furniture (seating, desk). In terms of technical occupational safety, it is also advisable in german practice to agree on a ban on the use of private work equipment. A general right of access by the employer to the private home of the employee cannot be derived from the duties of occupational health and safety and data protection in Germany, but it can be agreed upon in individual contracts.

In addition, employers and employees in Germany must comply with data protection in the home office and, if necessary, take technical/organizational measures (e.g., data security for data transfer via VPN connections) to ensure that this can be guaranteed, Art. 32 DS-GVO. In addition, all data should be stored via a server in the german company. This is because in german practice high demands are regularly placed on data security and IT infrastructure, which must also be met in the home office. The appropriate suitable data protection precautions must be taken by the employer in this context.

In addition, he must ensure that the data protection requirements are permanently met by the employee while working outside the company office. The employee in Germany must ensure that he or she is the only person in the home who has access to the computer and (work) telephone in order to protect the confidential data at the home office from unauthorized access by family or third parties.

Duty to document working hours according to german law

The German Working Hours Act (ArbZG) also applies to home office employees in Germany. This means that even when working from home, the regulations on maximum working hours, rest breaks and rest periods, as well as the prohibition of work on Sundays and public holidays, must be observed. Accordingly, the employer must find a regulation model for time recording that records the working time while the employees are not on site at the company.

Pursuant to Section 16 (2) ArbZG, the boss is generally obliged to document the working time of the employees exceeding the working day working time of Section 3 sentence 1 ArbZG (8 hours). He can transfer this obligation to his employees for the time of the home office in Germany.

Home office, mobile work and teleworking, the little sisters of mobile work in german practice

In german everyday usage, the terms are often used synonymously, although there are significant differences in german legal practice. In the narrower sense, a home office is an activity that is generally restricted to the workplace at the place of residence by an agreement with the employer. In other words, a fixed workplace in Germany is designated and the employee must perform his or her work at this workplace.

Mobile work, on the other hand, is not tied to a specific workplace in Germany and can really take place from anywhere. It is conceivable that an employee works from the train, from a café, from the zoo (e.g. when the children's birthday is being celebrated, but an urgent delivery still has to be completed), from the cinema (the 30 minutes of advertising can certainly be used efficiently to send a few emails), or if things get really dicey, also from the dentist's waiting room.

In addition, there is also the form of telework. This is regularly the case when the german employer provides fixed computer workstations in the private area of the employee and the duration of this work is specifically defined and limited. In this case, the workplace is similar to the home office, and is solely the room designated for this purpose. The special feature of teleworking is that it is subject to the German Workplace Ordinance (ArbStättV), which regulates the safety and health protection of employees at their workplaces.

Workation under german law - "Home office" on the beach abroad

More and more german employees who work on the move or from a home office for longer periods of time are coming up with the idea of combining work and vacation. This is called workation. The term is made up of the words work and vacation. What is meant is a mixture of work and vacation. In german labor law, this form of work is quite new and not yet well established. Sometimes employees want to work temporarily in their home country, i.e. the german foreign country, due to family problems. In most cases, however, employees tend to dream of working from their laptops on a palm tree beach with a - preferably non-alcoholic - cocktail at the bar or while they swim in the infinity pool. But is it that simple?

First of all, it must be clear that working from abroad is, in most cases, mobile work and not working from a home office. This would only be the case if the employee has a residence abroad anyway. If a german employee simply decides on his or her own initiative that he or she will do remote work for two weeks at the Ballermann, then, strictly speaking, he or she is in breach of an obligation under the employment contract if the contract only stipulates working from the home office. In all cases, the workation project should therefore be discussed with the employer and planned with foresight, because it is not uncommon for consequences to arise not only under employment and tax law, but also under social security law in Germany.

In german legal practice, it therefore makes sense to include individual regulations on the workation model in the employment contract from the outset in order to limit the legal consequences and make them determinable. Above all, the time frame should then be limited in order to keep the additional workload under german labor law as low as possible. After all, it is not uncommon for a trip that was only supposed to be of short duration to develop into a longer stay, and short-term becomes long-term. And then the german HR department is caught off guard by the unplanned effort of having to familiarize itself with the foreign regulations regarding workation. Exceptions are workation stays that do not last longer than four weeks, in which case there is no need for any action under german employment law.

Taxation of work during vacation under german law

Workation may affect the employee's tax liability. The rule in german legal practice is that anyone who works abroad for more than 183 days a year (more than 50% of the working time) must pay taxes in the respective foreign country. Employers and employees can limit the tax effects if the work activity in the foreign workroom does not exceed the scope of the 183-day rule, is thus only of a temporary nature and the german residence continues to exist. More detailed information on the german tax law particularities can be found in the specific double taxation agreements (DTAs) as well as the foreign tax law of the respective countries.

To which labor law are the "german vacationers" subject?

The labor law of the country in which the "usual place of work" is located is primarily applicable. If an employee from Germany is only temporarily working from a foreign home office, no problems arise for the time being. This is because the focus of the work activity and the employment relationship remain in Germany.

Things only get complicated in this context when the 183-day rule is exceeded. If an employee works in a home office abroad for more than 183 days, his work there is no longer temporary and the legal situation changes. The situation is similar if german employees work exclusively abroad. In this case, the usual place of work and the main focus of the employment relationship are located abroad. If applicable, the employer may even become liable to pay tax abroad by establishing a foreign permanent establishment.

It is possible under german labor law to conclude a choice-of-law agreement in favor of german law in order, for example, to be able to continue to derive vacation entitlements from the German Federal Vacation Act or to ensure payment of salary in the event of illness in accordance with the German Continuation of Remuneration Act. In cases of long-term stays abroad, however, a choice of law and supplementary agreement under german law are often no longer sufficient. Likewise, such agreements lose their effect if higher labor law standards (e.g. higher minimum wage, lower maximum working hours) apply abroad than in Germany.

Posting Abroad - Social Security Obligations in Germany?

In most cases, german employees approach their bosses and inquire about the possibility of a work assignment. Consequently, it is not done on behalf of the employer. In principle, this trip would therefore not be a posting abroad, which would, however, cause problems with social security during the stay abroad. In the EU country (incl. Switzerland, Iceland, Liechtenstein and Norway; but not Denmark) there are in principle no deviating social security regulations and the respective social security law of the country of employment remains applicable. In other non-EU-countries, however, the situation must be specifically clarified in each individual case; if necessary, agreements in Germany have been concluded with the respective country.

To everyone's delight, in 2021 the social insurance institutions came out in favor of defining work abroad as a posting as well. This ensures that german employees are insured. Once the Workation plan is in place, employers should therefore contact the relevant health insurance fund to submit any necessary applications. It can then be ensured that employees remain covered by social insurance during their stay abroad. However, this regulation only applies temporarily until the end of June in 2022.

Work from home office: Reason for termination under german law?

Can one be dismissed in Germany for not wanting to return to the office from the temporary home office? In principle, the german employer can issue a warning to the employee for any breach of duties under the employment contract; whether the breach was a primary or secondary duty is irrelevant under german law. Only in exceptional cases may a breach of duty lead to immediate termination.

Within the scope of his right of direction, the employer in Germany may order the employee to return to the company from the home office, unless otherwise agreed. So if, despite the boss's demand to return to the office, you continue to stay at home and work from there, you can at least expect a warning. However, if you do not show up at the office for the second time after being asked to do so by the boss several times, you may be at risk of being summarily and extraordinarily dismissed under german law.

Advantages and disadvantages, risks of home office in german practice

Working from home can be both advantageous and disadvantageous in Germany. People who work full-time in a home office have neither a long commute to work nor do they have to visit their colleagues' offices - that's what telephone or e-mails are for. As a result, however, they also move around less and tend to leave the house less often throughout the day. In addition, german employees in an in-house office run the risk of work and life merging within the premises, and there is no longer a clear separation of the two spheres.

In addition, in german practice employers may expect you to be permanently available and on call. Besides availability expectations, poor equipment in the home office can also significantly stress the employee. Moreover, home office employees regularly feel pressured to get extra work done to avoid the prejudice of not working. In many places, this results in unpaid overtime and additional stress. So anyone who wants to work from a home office in the long term should have a good dose of self-discipline.

But working from home isn't all downsides in german practice. In many places, german employers can enjoy higher productivity among their employees. Employees themselves benefit from the time and money saved in terms of the commutes they would otherwise have to make. As a result, commuters in particular experience less stress early in the morning and are thus more relaxed and productive than they would be otherwise. In most cases, the home office in Germany goes hand in hand with more flexible working hours, which improves the work-life balance and makes it possible to optimize the compatibility of family and career. Another advantage on both sides is protection against infection. If there's another flu epidemic or a stomach virus in the kindergarten, not all employees have to be part of it and literally have to share in the excitement.