Mobile working regulations in Germany

1. Is there any legislation relating to working from home in your country?

No specific legislation relates to work from home in Germany.

2. How can working from home be implemented in a company, e.g. through collective bargaining agreements, unilateral decision, or employment contracts?

Work from home can be implemented in a company in several ways. The most common are additional agreements to employment contracts and works council agreements. It is also possible to implement work from home in the employment contract itself or by means of a collective agreement.  Yet, it is generally not possible to implement work from home by means of a unilateral decision of the employer (see the next answer for an exception to this).

3. Can an employer force an employee to work from home?

If the employment contract determines a certain place of work and the implementation of work from home is not explicitly included in the employment contract, it is not possible to force an employee to work from home by means of the employer's right of directions in § 106 S. 1 GewO (German Code of Trade and Commerce).

4. Can an employee force an employer to allow him to work remotely?

No. Employees do not have a right to work from home (i.e. remotely). However, this topic has been widely discussed in German politics and the media since the outbreak of the COVID-19 pandemic. However, it is not clear when such legislation will be introduced and what the precise wording will be.

5. Does an employer have to provide the employee with office equipment and supplies for remote working?

Yes. The employer is generally obliged to provide all employees with the required working equipment regardless of his place of work.

If the employer and the employee agree that the employee will use his personal working equipment, the employer may be obliged to reimburse the employee for expenses for working equipment that  could reasonably be considered necessary and were acquired in the employer’s interest (i.e. a claim according to § 670 German Civil Code or BGB).

6. Does a company have to reimburse an employee for expenses while working from home?

No. There is no specific statutory provision that obliges the employer to compensate employees for their expenses while working from home.

For example, the employer is  generally not obliged to compensate the employee for his telephone, internet or power costs as well as lease or mortgage costs. Instead, the employee can set these expenses off against his tax liability. If the employee is obliged to work from home (e.g. because of an order from a public authority or the employer), he is permitted to set down a maximum of EUR 1,250 against tax (in German, Werbungskosten).

If the employer reimburses the employee's expenses on a voluntary basis, he may be obliged to list the reimbursement on the payroll (e.g. a flat-rate reimbursement for the use of internet amounting to a maximum of EUR 50 is liable for income tax of 25%, but not for a social insurance contribution).

7. Does an employer have to grant an employee a specific work-from-home allowance? If so, under what conditions can an employer not pay such an allowance?

As there is no formal requirement, an implicit agreement to work from home is also possible. However, since there are many issues concerning work from home that need to be regulated, a written agreement between employee and employer should always concluded.

An agreement between employee and employer that includes the abolishment of the obligation to pay wages when the employee works from home is unlawful according to to § 1 MiLoG ( German Minimum Wage Law).

8. Is an employer responsible for ensuring proper working conditions from a health and safety perspective for employees who are working remotely?

Yes. The provisions of the German Working Conditions Act (ArbSchG) also apply to work from home. The specific occupational health and safety measures to be taken by the employer depend on the circumstances of the individual case. Generally, risk assessment (§ 5 ArbSchG) and instruction of the employees (§ 12 ArbSchG) are the most important aspects.

9. Are there any other specific obligations for the employer?

The employer has no specific obligations relating to work from home, but general obligations (e.g. Working Hours Act) apply.

10. Does an employee need to be insured to work from home?

An employee working from home must be insured in the same way as an employee working from a usual place of work.
Usually, employer and employee will agree that work resources provided to the employee and any remaining property of the employer will be insured by the employer for damage to property, theft and fire.

German jurisdiction has expressly affirmed that statutory accident insurance protection also applies when working from home, provided that the accident "occurs on the occasion of an activity, which the employee performs with the tendency to carry out an activity serving the company". In other words, as long as the employee is actually working for the employer in a home office, statutory accident insurance protection applies. However, the case law is specific, so that the decision depends  on the circumstances of the individual case. The case law is also restrictive so even short interruptions in work can lead to the loss of occupational insurance coverage.

12. Is the employer permitted to charge employee claims for “working-from-home cost reimbursements” against his/her saved expenses (saved expenses could include the employee’s reduced costs for transportation, gasoline, lunches in restaurants and dry-cleaning charge)?

No.

13. Are there any other specific obligations on the employee?

N/A

14. Any other comments?

N/A