CMS Expert Guide to mobile working

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

Yes. Since 2017, work from home is regulated by the Labour Code (Articles 1222-9 et seq.).  

Furthermore, we also refer to case law and to a national muti-industry agreement from 2005 (i.e. ANI) to resolve practical questions. The collective bargaining agreement applicable to the industry sector of the company may also provide for specific provisions. 

No, there is no general legislation on home-office work in Austria. However, due to COVID-19, certain specific regulations relating to home office have been passed. Employees who present a medical document certifying they belong to the “COVID-19 risk group” are entitled to receive higher protective measures at work or can (after consulting their respective employer) work from home, if possible.

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 is flexible. It can be implemented by a company-level agreement concluded with trade unions or by a policy unilaterally issued by the employers and subject to the opinion of the works council (if any). 

In the absence of a company agreement or policy, it is also possible to conclude an individual agreement with the concerned employee. 

In any case, it is highly recommended to set terms and conditions in writing to clearly define the parties' obligations.

Home office is subject to an agreement between employer and employee. Collective Bargaining Agreements can provide a legal framework and serve as a sample agreement. Often, works council agreements are based on a regulatory framework despite the concise legal basis for some of its regulations.

Home-office agreements must regulate: 

  • The extent of home-office work (whether it will be partial or full-time);
  • The working time and the responsibility to keep working-time records;
  • Provision of resources and reimbursement of costs when an employee uses private equipment; and
  • Data protection.

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

In principle, work from home must be done on a voluntary basis. Therefore, the employer cannot terminate the employment contract if the employee refuses to work from home. 

However, in case of exceptional circumstances, such as a pandemic, work from home can be imposed as a necessary measure for the continuity of business and the protection of employees' health and safety (Article L. 1222-11 of the Labour Code). 

No, an agreement is required. However, in certain cases the employer can demand that an employee work from home. Such a demand may be made if the employee belongs to the “COVID-19 risk group” or an employee tests positive for COVID-19. In the latter case, all employees who worked closely with this individual must work from home in order to avoid further infections. In these and other comparable situations, the employee's contractual duty towards the employer requires him to comply with the request to work from home.

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

No, the employer must accept the request of the employee to work from home.

However, WFH has become a right since 2017. As a result, when an employee asks to work from home, the employer's refusal must be justified by objective grounds (Article L. 1222-9 of the Labour Code): technical impossibility, disorganisation of business, etc. 

No, an agreement is required. However, if the employer denies the request from an employee belonging to the “COVID-19 risk group” to work from home, the employer must present comprehensive protective measures to reduce the possibility of an infection. 

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

Work equipment might be the property of the employee or be made available by the company. 

However, when work from home is imposed by the employer, he must provide the employee with the necessary tools.

In general, the employer is responsible and obliged to provide the necessary operating resources for home work, but the employer and employee can agree on the extent of this support.

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

In its Q/A issued during Covid-19 lockdown, the Government provided that:

  1. The employer is only responsible for the costs incurred by the employee while he works from home if the company agreement or the policy provides for this obligation. 
  2. The employee's usual catering rights are maintained (e.g. the lunch meal).

However, in our opinion, this position might  be challenged in light of the fact that according to the 2005 national agreement and case law the employer must reimburse the employee with any and all  expenses incurred during WFH (Supreme Court, 25 February 1998, n°95-44.096).

In any case, the expenses can be reimbursed as a lump-sum to the employee, within a limit of €.10 per month for an employee working from home once a week. 

Generally, yes since the employer must bear the costs for operating resources and related expenses. If the employee works from home, he may request a pro rata reimbursement of costs incurred for utilities such as internet and electricity usage, which may be difficult to determine in practice. 

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?

Case law considers that the employee must benefit from an "occupancy allowance" when the company does not have premises where the employee can work and therefore the employee is de facto obliged to work from home (Supreme Court, 8 November 2017, n°12-19.667). 

This WFH allowance should be limited to this specific situation. When WFH is optional and voluntary (as it is in most cases), this extra indemnity is not due. (Only reimbursement of expenses are due).

There is no specific work-from-home allowance, but the employer is generally required to reimburse all costs incurred by the employee even though those costs may be difficult to determine in practice. One solution may be for employer and employee to agree on a lump-sum payment for estimated expenses.

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

The employer is also subject to a duty of care regarding the employee's  health and safety while working from home. 

In this context, the employer must ensure that the employee's home workspace and equipment are appropriate to safely perform all duties. 

Furthermore, the employer must prevent employee isolation, control workloads and ensure a balance between the worker's private and professional lives (Articles 6 and 9 of the 2005 ANI). 

To do so, the Labour Code notably provides for the obligations (i) to meet at least once a year to discuss the workload and working conditions and (ii) to set down the times of day when the employee can be contacted (Article L. 1222-10). 

The employer is responsible to ensure compliance with regulations relating to employee protection, particularly on the design of the workspace according to the Act on the Protection of Employees (ArbeitnehmerInnenschutzgesetz) and the Regulation on Screen Work (Bildschirmarbeitsverordnung). When the employer provides equipment, this equipment must be compliant with the respective health-and-safety regulations.  

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

The employee working from home has the same rights as an employee working in the company's premises, notably in terms of collective rights.

The employer remains responsible for ensuring employee compliance with working-time limits and minimum-rest requirements. 

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

Yes, the employee must be covered by insurance for his professional activity, as well as for the material and equipment made available by the company.

All employees in an employment relationship are covered by work-accident insurance, regardless of the place of work. No additional insurance is necessary. 

Yes, the employee benefits from the specific regulation applicable to work-related accidents and illnesses (Article L. 1222-9 of the Labour) if an accident occur while working from home.

Yes. If the insured employee is working remotely then his home is his place of work and accidents while working there are covered by work-accident insurance. Currently, due to the COVID-19 crisis, the scope of work accident insurance coverage while working at home has been broadened. 

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.

No.

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

N/A

N/A

14. Any other comments?

In November in France, employers’ and employees’ trade unions will begin to negotiate a new national cross-industry agreement covering all eventualities of work from home (e.g. which positions are eligible, whether and for how long one may work abroad, the number of days one may work from home in any given period …).

N/A