Working from home (known in German as “homeoffice”) has become increasingly important during the COVID-19 pandemic. The draft of the previously announced new legal regulation on remote working is now available. It contains innovations and clarifications on agreeing to work from home, liability, employee and accident insurance protection, as well as on the tax treatment and provision of work equipment for remote working. According to the draft, most of the new regulations come into effect on 1 April 2021.
You can find the most important key points here:
1. Definition of “working from home”
For the first time, the draft bill contains a legal definition of working from home. An employee is considered to be working from home if they perform work at home (Section 18c para. 1 of the Employment Agreement Law Adaptation Act (AVRAG)). Work performed in a home at a secondary residence, in the home of a close relative, or a partner also counts as working from home.
2. The employee and employer must agree on working from home
Working from home must still be contractually agreed between employer and employee. That means, first, the employee has no legal entitlement to work from home and cannot unilaterally start to work remotely. And second, the employer cannot unilaterally order the employee to work from home. The employer may not reserve the right to unilaterally order an employee to work from home either.
Now, however, the working-from-home agreement must be concluded in writing (Section 18c, para. 2 of the AVRAG). According to the draft, however, the agreement is not rendered invalid if it has not been set down in writing. Another new provision is that the working-from-home agreement can be terminated by either party for good cause with one month's notice (Section 18c para. 4 of the AVRAG). Good cause might be, for example, significant changes in the operational requirements or the employee’s living situation.
3. A voluntary works agreement is possible
In companies with a works council, it is advisable to regulate the framework conditions of working from home in a works agreement. So far, such regulations have been based, among other things, on “the use of company resources” (Section 97(1)(6) of the Labour Constitution Act (ArbVG)), “accident prevention and health protection” (Section 97(1)(8) of the ArbVG) or “reimbursement of expenses and costs” (Section 97(1)(12) of the ArbVG).
Now, a new specific legal basis is to be created for the conclusion of a voluntary works agreement to “determine the framework conditions for working from home” (Section 97(1)(26) of the ArbVG). This is intended to enable working from home to be comprehensively regulated at company level, including aspects that would otherwise fall under other voluntary works agreements, such as the regulation of the (flat-rate) reimbursement of costs.
However, remote working must still be agreed between the employer and the employee even if a working-from-home works agreement has been concluded.
4. Clarification on liability when working from home
Employees working from home were already covered by the provisions of the Employee Liability Act (DHG). It has now been clarified that damage caused to the employer (e.g. to work equipment or work results) by household members or pets while employees work from home is to be attributed to the employee as the party causing the damage (Section 2 para. 4 of the DHG). These damages are therefore subject to the liability reduction of the Employee Liability Act.
5. Employee protection when working from home
Furthermore, the provisions of the Employee Protection Act (ASchG) relating to workplaces – except the regulations on VDU work (Sections 67(f) of the ASchG) – do not apply to domestic workspaces. However, if the employer provides office furniture, they must ensure it meets the ergonomic requirements and the state of the art.
It is now explicitly spelled out that the Labour Inspectorate has no right to enter the private homes of employees working from home for inspection purposes. However, they may enter with the employees’ consent.
6. Accident insurance cover for the home workspace
The 3rd COVID 19 Act already categorised as occupational all accidents that take place while the COVID 19 measures are in force and in temporal and causal connection with occupational activity carried out in the home.
This regulation is now to apply indefinitely (Section 175 para. 1(a) of the General Social Insurance Act (ASVG)). According to the draft, accidents carried out in the satisfaction of vital needs and related journeys in the vicinity of the home (e.g. shopping in the supermarket, visiting a pub) should also qualify as occupational accidents when working from home.
7. Provision of work equipment
First, in principle the employer must provide employees with the digital work equipment (IT hardware, data connection) required for regular work when working from home. This obligation does not apply if the employee works from home on a one-off basis, i.e. without the intention of working from home again. If, in deviation from this, the employee agrees to use their own digital work equipment, the employer must pay the employee a (lump-sum) compensation for the reasonable and necessary costs (Section 18(c) para. 3 of the AVRAG).
Under tax law, with effect from 01.01.2021, this is to be supplemented by the following regulations:
- Digital work equipment provided by the employer is not a taxable benefit in kind.
- Payments by employers to compensate for costs arising from remote working are tax-free as a working-from-home lump sum of up to EUR 300 per year (EUR 3 per day for a maximum of 100 days).
- Employees can generally claim expenses for ergonomically suitable furniture (desks, swivel chairs, lighting fixtures) in their own home based on a working-from-home agreement of up to EUR 300 per year as income-related expenses. The prerequisite is that at least 42 days per year were worked exclusively in the home workspace. This will already apply for the assessment year 2020, whereby the amount of EUR 300 will be divided into two lots of EUR 150 for each of 2020 and 2021.
- If the maximum amount of the working-from-home office lump sum is not fully utilised in benefits from the employer, the employee can generally claim the difference as a lump sum for income-related expenses.
- The number of days the employee works from home must be recorded in the payroll account.
8. Working hours
The provisions of the law on working time and rest periods are not to be changed and therefore continue to apply when working from home (e.g. maximum working time limits, rest breaks). In particular, Section 2 para. 2 of the Working Time Act (AZG) continues to stipulate that the time a worker is employed in their home or otherwise outside the company is also working time. If necessary, the agreed working time model for working from home can be adapted by mutual agreement. As in the past, employees who work predominantly from home must keep a record of their working hours (Section 26 para. 3 of the AZG).
9. Data protection
The draft of the new legal regulation on working from home does not provide any regulations on data protection. In view of the special importance of data protection in connection with working from home, every working-from-home agreement should nevertheless contain – as has been the case so far – regulations on compliance with data protection requirements while working from home.
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