Remote Working Legislation, Laws & Regulations in Germany

No specific legislation relates to work from home in Germany, at least not in the sense of an overall codification. However, isolated provisions concerning work from home or also remote work can be found in individual laws (e.g. co-determination right of the works council on remote work stipulated in § 87 (1) No. 14 BetrVG (German Works Constitution Act), occupational health and safety requirements for telework in the sense of § 2 (7) S. 1 ArbStättV (Workplace Ordinance)).

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 no. 3 below for an exception to this).

If the employment contract determines a certain place of work (e.g. the employer's business premises in a certain city) 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). However, in exceptional situations, in particular in cases of a pandemic situation of national scope, officially ordered closures or evacuations, as well as in such situations in which the business premises are not available for the exercise of the activity due to force majeure (e.g. water or storm damage, fire), it is conceivable to exceptionally assume a unilateral right of order.

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. The latest draft law provides for employees whose work is suitable for remote work to have the right of initiative to claim remote work (right of discussion). However, it is not clear when such legislation will be introduced and what the precise wording will be.

The employer is generally obliged to provide all employees with the required working equipment regardless of his place of work. Thus, if the parties agree that the employee will work from home exclusively, it will be the employer's responsibility to ensure the proper equipment of the home office workplace at its expense (unless the exclusive work from home is carried out solely at the request or in the interest of the employee, see below).

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

Having said that, if the employer provides the employee with a workplace in the company and the work in the home office is carried out solely at the request or in the interest of the employee, the employee has no claim for reimbursement of expenses. The same applies if the employer allows the employee to choose where he wants to work. As long as a workplace is available for him in the company, the employer is not obliged to bear the costs associated with work from home.

If the employee procures the necessary work equipment himself because, for example, he is not allowed to take it home from the company office, he has a claim for reimbursement against his employer (see already above under no. 5.). Accordingly, the employee has a claim for reimbursement of his expenses which he was entitled to consider necessary for the establishment and ongoing use of his home workplace. The claim for reimbursement may thus also relate to a share of the rent if the possibility of using premises within the home is substantially restricted. Increased running costs such as electricity and heating costs are also eligible for reimbursement. However, the employee must prove that the costs were incurred specifically for the home office and would not otherwise have been incurred. In the case of internet and telephone costs, this is typically denied; in the case of electricity and heating costs, at least, it is difficult to prove. In the case of the latter, the parties therefore often agree on a lump-sum expense allowance that is not linked to actual use, whereby a lump sum of EUR 50.00 per month is generally considered appropriate.

However, a reimbursement claim is ruled out if the employer leaves it up to the employee whether to perform the work owed in the company or in the home office and provides the employee with a workspace in the company (see above under no. 5).

Apart from the constellations described under nos. 5 and 6 (in particular in the case of an agreement on a lump sum for increased electricity and heating costs, etc.), the employer is not obliged to pay any other allowances or lump sums for the work from home.

Irrespective of this, employees can claim a home office allowance as part of their income tax return.

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.

The employer does not have any further special obligations regarding the work from home beyond those mentioned above. However, the application of the general obligations (e.g. Working Hours Act) must be considered. In addition, the fact that employees work from home should be taken into account when dealing with the legal requirements of certain areas of law such as the protection of trade secrets or data privacy.

An employee working from home must be insured in the same way as an employee working from a usual place of work (office/premises of the company).

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.

No.

No. The regular obligations arising from the employment relationship also apply to work from home.

Short term remote working without an employer in Germany or a secondment to a German part of a foreign group or company is not yet recognized by German immigration law. Such stay may only be approved for nationals of the so-called best friends states Andorra, Australia, Canada, Israel, Japan, Republic of Korea, Monaco, New Zealand, San Marino, the UK and the USA based on the details of the employment.

Remote working from abroad refers to the performance of the work under the employment contract outside of the employer’s premises, using mobile equipment at a foreign location chosen by the employee (e.g. holiday home, hotel, etc.). As a logical development of homeworking and similar arrangements following the COVID-19 pandemic, remote working from abroad is becoming increasingly important. The term "workation" has emerged in the context of working remotely from abroad – a neologism formed from the words "work" and "vacation" reflecting the combination of work with typical leisure activities at a holiday destination. In Germany, there are no specific legal provisions for this form of remote working.

As a rule, the employment law of the "home country" continues to apply to employees working remotely from abroad. Remote work from abroad is typically of a temporary nature. Since the applicable law is determined by the habitual place of work, it remains the law of the "home country" and does not change. Therefore, if employees employed in Germany temporarily work abroad for their Germany-based employer, German Labour Law still applies in principle.

In addition, it should be checked whether local regulations at the foreign place of work apply to some extent.

The social security regulations to which a German employee working abroad is subject are governed by EU law on the coordination of social security. However, European law does not clearly define the regulations that serve as the basis for applying social security law when an employee is temporarily working from abroad. The German Liaison Agency for Health Insurance Abroad (Deutsche Verbindungsstelle Krankenversicherung Ausland or DVKA) takes a pragmatic view and continues to apply German social security for employees temporarily working from abroad if:

• the employer is aware that the work is being done abroad and agrees to this;
• the employer receives and pays for the service rendered; and
• an application is made to the competent office for an EU posting (i.e. A1 certificate).

A short-term workation abroad of a few days or weeks does in most cases not create issues from a tax perspective. The employee in question remains liable to pay its income tax in Germany and rarely incurs a tax liability due to spending a short period of time outside the country. Any potential tax liability in the other country is usually dealt with by the applicable double-taxation treaty allocating the taxing right to the home state/domicile. However, it always makes sense to have this confirmed by an expert in the jurisdiction where the work is being performed.

The employer must continue to deduct wage tax from the employee's salary as usual.

With only short-term remote work abroad, the employer will rarely have the risk of creating a permanent establishment – which would lead to tax filing obligations of the employer in the other country – due to the lack of fixed business facilities such as a rented office and the employee's short stay abroad.

However, special constellations may arise if the jurisdiction where the employee works is a non-treaty state, the employee is a senior/executive employee (e.g. a managing director), activities with a high added value are carried out abroad, or more extensive use is made of the possibility to work from abroad.

Nationals of a member state of the EU, EEA or Switzerland enjoy freedom of movement within the area of these states, giving them the right to work in any of the states without having to apply for a work permit.

The situation is different if third-country nationals wish to go on a workation or if German employees wish to work in countries outside the EU, EEA or Switzerland. In these cases, immigration law requirements of the host country must be checked and observed to avoid illegal employment.

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