It has begun - the preparation for post-pandemic working hours. But with the upcoming German "Freedom Day", millions of employees in Germany are also about to turn their backs on a freedom they have grown fond of: working from home could soon return to the old "nine-to-five" model in an open-plan office. Whether in pyjamas on the couch during a meeting marathon or working from anywhere with a laptop in your luggage - working in a completely individualized workplace could come to an abrupt end if the boss has other ideas about everyday office life.
This is because the end of the obligation to work from home on March 20, 2022 also marks the end of employees' legal entitlement to mobile working - without the discussion about the right to work from home, which has been simmering since the beginning of the coronavirus pandemic, having come to an end. For the time being, it is once again the employer who determines the place of work. It determines the place and time of work at its discretion in exercising its right to issue instructions under Section 106 GewO. Before coronavirus, this was regularly the employer's premises - i.e. the office.
Ampel coalition plans right to work from home
However, the office-first principle could soon change. This is because the "right to discuss" mobile working announced in the coalition agreement of the coalition government - i.e. the basic right of employees to move their workplace to a home office if there are no important reasons against this on the part of the employer - does not yet exist de facto.
In January, Federal Minister of Labor Hubertus Heil (SPD) reiterated the plan to implement this: according to the Federal Ministry of Labor, employers will have to allow employees to work remotely in the future. "If they want to refuse this, there must be operational reasons against it - for example, because you work in a steelworks at a blast furnace and of course you can't work from home," Heil told the German Press Agency. There will therefore be no entitlement to working from home for professional groups who cannot do their work from their desk anyway. These include, for example, nursing staff, teachers or employees in manufacturing professions or logistics.
However, in order to ensure basic coronavirus protection in the workplace, employers are still required to allow people to work from home if hygiene protection is required, for example in open-plan offices.
Despite all the home office euphoria, there are also concerns. In order to establish a legally secure and employee-friendly right to work from home, the German Trade Union Confederation demands that, in addition to a more detailed definition of operational reasons, specific rules on occupational health and safety are also needed. Employees must also be adequately protected against the removal of boundaries, monitoring, excessive demands and poor ergonomics when working from home.
It is essential to record legal matters in the employment contract beforehand
In the new territory of working from home, there is still some legal work to be done before it becomes comfortable. However, working from home and working from home are unlikely to be separated for good: according to a study by the ZEW research institute, more than a third of the companies surveyed want to enable their employees to work from home at least some of the time in the future.
Anyone who does not want to leave their home office in the future and wants to continue working from home should therefore, in addition to the employer's obligation to grant permission, make sure to include binding provisions in the employment contract to avoid disputes with the employer later on. This definitely includes agreements on the amount of time, availability in the home office, documentation obligations of the employee, but also on the use of private work equipment - and no, pyjamas are not included.
