Out-Law Analysis | 11 Aug 2021 | 2:36 pm | 2 min. read
The home office obligation has expired in Germany but at the same time the Occupational Health and Safety Regulation on Covid-19 was updated and extended until 10 September. International businesses with a presence in Germany should bear in mind that employers are still obliged to prepare an operational risk assessment with regard to the risk of Covid-19 infection at the workplace and to adapt their operational hygiene and safe working practices accordingly.
Under the revised rules, it may still be necessary to allow employees to work from home - for example, if office space is to be used by several people and there is not enough space to maintain social distancing. "The employer has to take all appropriate technical and organisational measures to reduce business-related contact with people," the German Ministry of Labour and Social Affairs (BMAS) said. "The simultaneous use of rooms by several persons must be reduced to the minimum necessary for the operation."
In addition, home office working can also help to reduce the number of employees who have to commute to work by public transport. Even if the employer can minimise the risk of infection in its premises, the employer has no influence on how safe its employees are on the way to work.
Many jobs cannot be done from home, for example in production, logistics or trade. In other areas, too, there may be reasons why working from home is not possible, including if operational procedures would be restricted. This may apply, for example, to office workers who are responsible for distributing mail. In some cases, data protection requirements and the protection of company secrets could also stand in the way of working from home.
If home working is possible and offered by the employer, the employee is free to accept or decline the offer. The employer can only oblige its employees to work from home if the employment contract contains a corresponding provision for home working or if there is a company agreement on this.
If the workforce or part of the workforce works from home, the employer must still ensure that general occupational health and safety rules and the German Working Hours Act are observed. For example, even if employees work from home, they must only be available during the agreed working hours. The statutory rest period of at least eleven hours must also be observed when working from home and overtime may also only be worked within the legal framework.
In principle, the employer is also responsible for the safety and health of its employees when they work from home. However, as far home office equipment is concerned, this does not mean that the employer has to provide its employees with everything necessary. Employees can also use their own work equipment at home. According to the BMAS, "it is a good idea to jointly agree whether and under what conditions work equipment can be provided by the employees." The employer must include the home office workplace in its risk assessment and determine the necessary equipment. It must also ensure the safe use of work equipment.
Data protection often poses a particular challenge when working from home. In principle, documents that are subject to data protection requirements may be processed when working from home. However, the requirements of the EU’s General Data Protection Regulation must be observed. For example, employees must ensure that no one can access data or documents at home without authorisation. Especially in multi-person households, this can mean securing the PC with a password with a high level of protection and locking it even during short absences. It is important to lock away papers and notes with sensitive information, too. The technical infrastructure must also meet data protection requirements - for example, workers must be able to log into a secured IT system.
Tips for working safely from home can be found on the website of the German Office for Information Security.
03 Aug 2021
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