The legal framework for regular work in the mobile office is currently still lacking in Germany—the Federal Ministry of Labor and Social Affairs wants to close this gap.
The German government coalition parties have always expressed their intention to support mobile work in Germany. It seems that these endeavours are picking up pace slowly but surely. In the first step, the minister of labor and social affairs had issued a draft bill in October 2020 containing an employee entitlement to work remotely for 24 days per year. This draft has been widely criticized by employers' associations and legal experts. Against this background, a second draft has been worked out by the end of November. This draft bill is currently being discussed within the Federal Cabinet.
Reportedly, the draft bill now contains comprehensive regulations on mobile work, but it does not contain an entitlement to work remotely. It is to be expected that a compromise can soon be found in order to introduce the draft regulations to the parliament.
The draft reportedly provides that an employee may ask to work remotely but does not contain a legal entitlement against the employer in this regard. A distinction between working from home and working remotely from any other workplace than the office which was often made in the juridical literature is not carried out anymore. This seems to be reasonable—all forms of mobile working on a regular basis will be covered by the legislative changes.
According to the draft, the employee must inform the employer about his or her plans to work remotely at least three months before the desired start date. This request must contain information on the start, duration, extent of the mobile work and distribution of the working time. The employer can reject the request for operational reasons but needs to explain the refusal. A new request can be issued by the employee at the earliest four months after rejection. If employers fail to provide an explanation on the reasons of rejection within two months after the employee's request, their consent is deemed to be granted. Therefore, the timely explanation on the reasons of rejection should not at all be underestimated by employers in case this draft is adopted.
This approach shall ensure that employer and employee come to a mutual arrangement regarding mobile working which is suitable for both. It shall be possible for both parties to terminate the mobile working arrangement with a notice period of three months to the end of a calendar month, however, this possibility exists at the earliest at the end of the sixth calendar month since the beginning of the (last) agreed mobile working arrangement.
Until now, German employment law generally does not oblige employers to record their employees' working time although the European Court of Justice (ECJ) has already expressed that working time recording is obligatory. Only in some specific cases—e.g., for overtime worked—a recording obligation applies in Germany. The draft bill now leans on the ECJ's judgement and obliges employers to record working hours of employees regularly working remotely; violations of this obligation can be punished with fines up to EUR 30,000.
Occupational health and safety in the mobile workplace are also a frequently discussed but roughly regulated matter and the draft bill does not appear to contain sufficient guidelines for employers in this regard. As before, the employer must assess, in particular, the hazards that may occur in the employee's workplace and define and document measures. This includes an instruction in text form before the start of the mobile work to enable employees to take care of their own health and safety. It is still not clear how a risk assessment shall be carried out given the employer does not always have the opportunity to convince itself from the mobile workplace of each employee—may it be for reasons of lack of capacities or because privacy rights of the respective employees stand in the way. However, the legal statement of the draft bill contains at least a confirmation that the employees' cooperation is of particular importance in matters of occupational safety. Employers should therefore continue to make sure that contractual regulations for the implementation of occupational health and safety measures are also agreed upon.
The draft bill also provides that insurance protection by the statutory accident insurance shall be ensured in the mobile workplace. Although this is generally the case already, the liability of the accident insurance is often disputed when it comes to accidents in the home office. A further extension of insurance protection shall grant protection to working parents: The travel to bring their children to day care and pick them up shall be included in the scope of the statutory accident insurance.
As regards the question of tax reliefs for mobile work, the parliament has decided that employees can deduct up to five euros per day from their taxes in their tax declaration to compensate for the additional burden of working remotely during the COVID-19 crisis. This is possible up to a maximum amount of EUR 600 per year and only for 2020 and 2021.
It remains to be seen how many of these draft regulations will be adopted as law in the end. First of all, the Federal Ministry of Labor and Social Affairs must now obtain a resolution in the Federal Cabinet and get the bill through the parliament.
In any case, against the background of current legal uncertainties, the approach of closing the gap of a legal framework for regular mobile work can already be considered a step in the right direction. This applies, in particular, considering the importance that mobile work has gained this year due to the COVID-19 crisis. Against this background, the Federal Ministry of Labor and Social Affairs updated the "Corona Occupational Health and Safety Ordinance," which shall enter into force on Wednesday, January 27, 2021, and is initially valid for a limited period until March 15, 2021. It provides that employers shall offer the employees to work remotely during the COVID-19 crisis as long as the work can be carried out remotely and if no operational reasons oppose this.
Please feel free to reach out to our Employment Team in Germany or your usual contact at Orrick to find out more or if you need any help.