Digitalization and, not least, the experiences of recent years have made working from home an integral part of working life for many employees and employers. However, new legal issues are arising as work becomes more flexible in terms of time and space. This article examines the current legal regulations and their practical implementation in Germany in order to give you, as an employee or employer, more legal certainty in the modern working world. We look at key aspects, from the various forms of remote working to important regulations on working hours, data protection and occupational health and safety.
What exactly does working from home mean in legal terms?
In common parlance, terms such as home office, mobile working and teleworking are often used interchangeably. However, there are legal differences, which have particular implications for occupational health and safety. A clear legal definition of "home office" is still missing. It is usually understood to mean working from home, either occasionally or regularly. This can take place as part of an employment relationship, but also as freelance work or working from home.
The distinction between this and mobile working is blurred, with mobile working often allowing greater flexibility in the choice of work location. Teleworking, on the other hand, is more clearly defined in contrast to home office and describes workstations set up by the employer in the employee's private home. Even if the term home office is colloquially dominant, it is decisive for the legal classification which form of remote work is actually present in order to correctly apply the relevant regulations.
Entitlement to working from home: yes or no?
There is currently no statutory right for employees to work from home in Germany. Whether an employee is allowed to work from home is generally at the discretion of the employer. However, a right to work from home may arise from a collective agreement, a works agreement or the individual employment contract.
Interestingly, the employer cannot unilaterally order or even force employees to work from home if there is no corresponding agreement. In view of the constitutionally protected fundamental right to the integrity of the home, such an obligation on the part of the employee is only conceivable in absolutely exceptional cases, for example to avert disproportionate damage. Although the Federal Ministry of Labor and Social Affairs (BMAS) is working on a draft law to introduce a right to work from home, this is not yet applicable law.
The home office agreement: a basis for clear employment law
As there is no legal entitlement to working from home and the employer cannot unilaterally order this, a contractual basis is necessary in order to regulate home office agreements in a binding manner and avoid gray areas. If the employment contract or works agreement does not contain any provisions on working from home, it is advisable to conclude an addendum to the employment contract. This agreement should set out the key details of home office work. Such an agreement creates legal certainty for both parties and prevents potential conflicts. It is also possible for an employee to tacitly agree, for example by accepting the necessary work equipment and starting work from home.
A comprehensive home office agreement should regulate the following points:
Place of work
Even if "home office" suggests that work is done at home, the exact place of work should be clearly defined, especially if there is no fixed place of business. Without a contractual provision, the employer generally has the right to determine the place of work within the scope of its right to issue instructions. The employer will often specify the place of residence as the place of work and at the same time include a clause for possible transfers.
Working hours
The provisions of the Working Hours Act also apply when working from home. This means that employees working from home must also comply with the statutory regulations on maximum working hours, breaks, rest periods and the ban on working on Sundays and public holidays. Employers are required to draw attention to compliance with these regulations and implement a time recording system. Employees may be obliged to record their daily working hours and present these on request. This serves to protect the employee and ensure traceability for the employer and the supervisory authorities.
Work equipment and costs
In principle, the employer bears the costs of setting up and maintaining the home office workplace, unless otherwise contractually agreed. This includes, for example, costs for office furniture, communication equipment, heating and electricity, as well as a share of the room rent. Employees are entitled to reimbursement of expenses. It is advisable to exclude the private use of company work equipment. The use of employees' private devices for work purposes (Bring Your Own Device - BYOD) also entails data protection risks and should be clearly regulated.
Right of access of the employer
A particularly sensitive point in home office regulations is the employer's possible right of access to the employee's private home. In principle, the home enjoys a high level of protection under Article 13 of the German Basic Law (inviolability of the home). Entry by the employer is therefore only permitted with the express consent of the employee.
However, since the employer also has legal obligations in the home office (particularly in the area of occupational health and safety in accordance with the Occupational Health and Safety Act) and may have a legitimate interest in the inspection or maintenance of work equipment provided, it is advisable to include a clear and strictly limited regulation on access rights in the home office agreement.
Such a clause must precisely define the conditions for access: it should stipulate that access may only be granted to
- for a specific, objective reason (e.g. agreed health and safety inspection, technical maintenance),
- after timely advance notice (usually 24-48 hours, for example),
- during normal working hours and
- limited to the immediate work area (e.g. the study or work corner). It is not permitted to enter without cause or unannounced.
If, despite such a permissible, clearly defined and agreed regulation, the employee refuses access without a valid reason (such as illness or a private appointment that cannot be postponed), this may be considered a breach of the home office agreement. In such a case, the employer may be entitled to revoke the permission to work from home or to terminate it as part of a change of contract, so that the employee must resume work at the company. However, termination of the entire employment relationship would only be conceivable in absolutely exceptional cases.
What happens when the home office agreement ends or one party wants to end it? This is not always amicable. If the employer feels compelled to issue a notice of termination or even a notice of termination in connection with the home office activity, the question of the legal framework conditions often arises. In some cases, severance pay can also play a role here, especially if a termination agreement is under discussion. You can find out more about the requirements and the amount of a possible severance payment here (or here, for expats).
Incidentally, it is important for employers to know that fluctuations in performance or declining productivity in the home office can have various causes. In addition to organizational aspects, health reasons such as mental illness (e.g. depression) can also be behind this. Open communication from both sides is important here. If depression is diagnosed and leads to a permanent loss of performance that cannot be remedied by making adjustments to the workplace, the question of continued employment sometimes arises. We shed light on this topic in our article "Dismissal due to depression".
Data protection in the home office: a special challenge
Compliance with data protection regulations is also essential when working from home. As the controller within the meaning of the GDPR, the employer has a duty to ensure the lawful processing of personal data. This requires suitable technical and organizational measures to prevent unauthorized access to data and IT systems in the home office.
Specific requirements for data protection in the home office can also be regulated in the employment contract or a company agreement. A corresponding clause in the employment contract is also recommended to protect company business secrets. Employees should be sensitized to the secure handling of data and trained accordingly.
Occupational health and safety and insurance cover: safety outside the office too
In principle, the same occupational health and safety regulations apply to home offices as to workplaces in the company. Employers have a duty of care and must ensure the health and safety of their employees. The specific protective measures result from laws such as the Occupational Health and Safety Act (ArbSchG), the Workplace Ordinance (ArbStättV), the Working Hours Act (ArbZG) and the Occupational Safety Act (ASiG).
Employers are also legally obliged to carry out a risk assessment for home office workplaces in order to identify risks and define protective measures. In practice, this is often done with the help of checklists or questionnaires with the involvement of the employee. For their part, employees are obliged to implement the employer's health and safety requirements and to use the work equipment provided properly.
Insurance cover under statutory accident insurance is a complex issue when working from home. In principle, accidents that are directly related to professional activities are insured. However, it can be difficult to distinguish between work and private life when working from home. A fall on the way to the printer in the office can be assessed differently to a fall on the way to the private kitchen. A legally binding assessment always depends on the specific circumstances of the individual case. This also applies to health hazards that could lead to occupational illnesses.
Conclusion
Working from home offers many advantages, but also brings with it specific legal challenges. Clear contractual regulations are equally important for employers and employees in order to define rights and obligations and create legal certainty when working from home. In particular, the areas of working hours, work equipment, data protection and occupational health and safety require careful attention. By familiarizing yourself with the relevant legal principles and potential pitfalls, you can ensure a successful and legally compliant home office. For further support, it is advisable to seek professional help from a specialist employment lawyer.
