Home office, teleworking and mobile work
Since Corona pandemic, home office, teleworking and mobile work (hereinafter referred to as "mobile work") have come into focus for many employees and employers. What used to be the absolute and, above all, frowned upon exception, now - after it initially represented a necessary annoyance - becomes an attractive incentive in the competition of young talent. Even in the current employment relationship, the employer sees the positive benefit. It is now increasingly being used to increase employee satisfaction and loyalty.
However, the uncertainties and misunderstandings - as mostly - lie in the detailed questions.
Home Office/Telework Versus Mobile Work
Often the terms are incorrectly used as synonymous, although legal and actual differences are linked to the respective term.
There is (yet) a legal definition of the term home office. After general use of language, this means that the occasional or constant work in the private rooms of the employee is understood. The employer has to ensure that the tele or home office workstation meets the same legal requirements as the operational workplace. A job is set up at home to the employee. The employer covers the costs for this. If the employee also has a job in the company and alternately works from there and from home, one usually speaks of "alternating teleworking". As a result, home office is a case of teleworking.
The concept of telework can be found in the Workplace Ordinance (ArbStättV). Section 2 (7) of the ArbstättV defines teleports as a comprehensive place for the employer in the private sector of the employees, for which the employer has determined a weekly working time agreed with the employees and the duration of the facility. The employer only sets up a telephoto workplace if employers and employees have determined the conditions of teleworking in employment or as part of an agreement and the required equipment of the telephoto workplace with furniture, work equipment, including the communication facilities by the employer or a person commissioned by him, is provided and installed in the private sector of the employee.
Under mobile work, the possibility granted by providing mobile devices (smartphone, tablet, laptop) must be understood to provide the work performance in typically changing places outside of operation (for example, when traveling on the train, in the hotel or in your own four walls). The employee does not need to work from home, he can autonomously determine his place of work. He just has to ensure his accessibility. Mobile work, like the HOHENPFFICE, is also not legally defined.
Both home office/teleworking (here only uniformly called "home office") and mobile work have their advantages and disadvantages. Which model fits better depends on the one hand on the culture in the company as well as the implementation options and on the other hand and - as far as possible - private requirements of the respective employee.
Occupational health and safety regulations for home office and mobile work
In the home office, the same occupational safety standards as in the classic office workstation must be observed. If the workplace is set up by the employer, the comprehensive regulations of the Workplace Ordinance (ArbStätTV) must be observed. The employer remains responsible for the implementation and the assumption of costs.
While the employer for employees in the home office must generally fully ensure that occupational safety regulations are fully ensured, the requirements for mobile work are more flexible. At least the Workplace Ordinance (ArbStättV) does not apply here. However, the other occupational safety regulations such as the risk assessment in accordance with Section 5 (1) ArbSchG, the instruction of the employee in accordance with Section 12 (1) ArbSchG and the Operating Safety Ordinance, on the other hand, also apply in the event of mobile work, even if partly. Here the employer's test and documentation obligations should be observed.
Working time law in home office and mobile work
Regardless of whether the work is done from home, on the go or in the office, it is working hours. The Working Hours Act applies to all forms of work - and thus also the maximum working period of eight hours a day. In exceptional cases, working hours can be extended to up to ten hours a day if this difference is compensated for within six months or 24 weeks. The weekly maximum working time is 48 hours.
It will be interesting to see what the legislator can come up with here. After all, the Federal Ministry of Labor presented the second draft of the law on mobile work (MAG) at the end of November 2020. There are regulations here that should regulate the recording of the (mobile) working hours. A new § 112 GewO is planned, which determines that section 16 (2) sentence 1 ArbZG is modified in such a way that the employer is obliged to record the beginning, end and duration of the entire working time on the day of work. These records must be kept at least two years. In addition, the employer can delegate the obligation to record on his employee, but remains responsible for the proper recording.
Data protection for home office and mobile work
Data protection precautions must be observed in the home office and for mobile work as well as working in the office. The employer has to take suitable protection precautions. The fact that the risk of data protection violations and the disclosure of confidential operational information in the event of mobile work is particularly visible in railways and cafés when working on the official laptop - visible to all bypasses - or talking about internal company internals on the phone. According to Art. 32 GDPR, all the necessary technical and organizational measures must be taken.
Since it is prescribed in Art. 5 Para. 2 GDPR that the person responsible in accordance with Art. 4 No. 7 GDPR, i.e. the employer, is responsible for compliance with the statutory regulations and must be able to prove compliance, the employee should receive clear written instructions. HomeOffice guidelines are primarily available here as an addition to the employment contract or-if a works council exists-a company agreement. In addition, the employer should be reserved for controls. B. can be carried out by employee surveys.
Individual and/or collective regulations
The question of whether a company introduces home office workstations is an entrepreneurial decision that is not subject to the approval of the works council. So this cannot prohibit or forced the introduction of mobile work.
The content of mobile work, i.e. the “how” of planning, is usually subject to personnel, social and economic co -determination in accordance with the provisions of the Works Conservation Act by the works council. The works council can initially and comprehensively teach on the introduction and design of mobile work in the planning stage (Section 80 (2) sentence 1 BetrVG). Furthermore, the works council must be informed about the individual measures and their effects on the employees in good time so that it can provide suggestions and concerns about planning (Section 90 (1) and 2 BetrVG). In addition, it is comprehensive about personnel planning, i.e. B. how many employees should take part or how long the employment should take place outside the company (§ 92 BetrVG). Consulting and proposal rights also exist on a certain extent. If home office is introduced to a larger extent, § 111 BetrVG is to be observed, which grants the works council in a far-reaching teaching and consulting rights. As far as the concrete implementation of HomeOffice activities is, the works council includes co-determination rights according to § 87 Paragraph 1 No. 2, 3 BetrVG regarding working hours, in accordance with Section 87 (1) No. 6 BetrVG with regard to the introduction and application of technical surveillance institutions, in accordance with Section 87 (1) No. 7 BetrVG regarding accident prevention regulations and in accordance with Section 87 (1) No. 10, 11 BetrVG to pay questions. In addition, the works council has a right of co-determination in accordance with Section 99 BetrVG for individual personnel measures, for example, if, for example, a normal company workplace is converted into a home office workstation. Furthermore, participation rights from §§ 91 and 102 BetrVG can result.
Conclusion
Whichever model prefer employers and employees: it is crucial to capture the rights and obligations on both sides. In particular, it should be explicitly regulated on how to deal with the topics of work equipment, data protection, liability, costs and cancellation options.
