At the beginning of November last year, the German government passed a new Workplace Ordinance (ArbStättV), which has now come into force.
Among other things, this means that new regulations apply to teleworking workplaces, i.e. home offices.
Employers should take this as an opportunity to review existing home office agreements or, if necessary, to make them in the first place.
This article shows the specific changes.
Workplace Ordinance 2016 entered into force
The much-cited change in the world of work is finding its way into occupational health and safety law.
Work is becoming more mobile and workplaces no longer look the same as they did 30 years ago.
The new Workplace Ordinance 2016 aims to take these changes into account and ensure that the safety and health of employees is guaranteed even in times of working from home and Work 4.0.
Workplaces and work processes should be designed in such a way that employees are exposed to as few risks as possible during their daily work.
The somewhat unwieldy regulation in the Workplace Ordinance conceals everyday issues relating to employment contracts and organization, which now also affect the home office.
General conditions for teleworking
The amended Workplace Ordinance replaces the previous Display Screen Equipment Ordinance.
It laid down general rules that applied to workplaces where computers are used.
There was previously no distinction between workplaces at the employer’s premises and home office workplaces.
The declared aim of the 2016 Workplace Ordinance is to eliminate legal ambiguities in practice, which repeatedly arose due to the previous uniform provisions.
What is teleworking?
When the ordinance refers to teleworking workstations, it means “workstations permanently set up by the employer in the private area of the employees”, “for which the employer has agreed with the employees on weekly working hours and the duration of the set-up”. (Cf. § 2 para. 7 ArbStättV).
The legislator has thus created a description of what is commonly referred to as a home office.
However, it is also clear that this is not about so-called “mobile work”.
If employees occasionally work for their employer at home or on the train in their free time without a proper agreement, this does not constitute teleworking.
In practice, genuine teleworking is mainly found among field staff, but increasingly also among developers and project managers in IT companies.
In some companies, entire teams work together exclusively or predominantly virtually, without a physical office in the traditional sense.
If work is carried out exclusively in the home office, this is referred to as exclusive teleworking.
Otherwise, if work is carried out both at the company and at home, this is referred to as alternating teleworking.
What all forms of genuine teleworking have in common is that employees perform a greater or lesser proportion of their working hours from their home office and travel to their employer’s premises more or less infrequently.
Home office agreement required
The Workplace Ordinance stipulates that an agreement must be reached on how teleworking should be organized.
This is new.
Employers and employees can stipulate the conditions of teleworking in the employment contract or in a separate home office agreement.
In any case, it should be precisely regulated to what extent the employee works in the home office and whether the teleworking is to be temporary or permanent.
Further regulations in the home office agreement make sense
Even if the Workplace Ordinance does not say anything about what other provisions should be made in the agreement, it is advisable to clearly set out some important aspects.
Typical provisions in a home office agreement include liability issues, overtime, costs of the home office, data protection and the employer’s right of access to the employee’s home.
In addition, it may be advisable to contractually regulate which company the employees in the home office are to be assigned to if the employer has several companies.
It is also possible to stipulate that the contractual place of work is the employee’s home office.
If there is no regulation on the place of work, the employer can transfer the employee at its reasonable discretion, but may then have to include a larger group of people in the social selection if it wishes to issue a dismissal for operational reasons.
Employers should also consider including a revocation option.
This makes it easier to “bring the employee back” if the organization changes or if it turns out that working from home is not going as expected.
Risk assessment and instruction
The Workplace Ordinance now stipulates that employers must also carry out a risk assessment for home office workplaces and inform and instruct employees accordingly, just as they do for regular on-site workplaces in their company.
This applies in any case if the workplaces in the company differ from those at home.
What is also new is that employers must pay particular attention to the mental stress caused by a workplace.
When working from home, for example, increased mental stress can arise because the boundary between work and private life becomes blurred and employees feel that they are constantly in work mode.
The risk assessment only needs to be carried out once when the equipment is first installed.
Ongoing monitoring is not required.
Nevertheless, the workplaces must of course meet the technical requirements of the ArbStättV if the nature of a home office workplace permits this.
In contrast, training must be provided once a year.
Outlook
Employers should take a thorough look at the requirements that will have to be met in future when setting up home office workplaces.
There is plenty of room for maneuver, especially when it comes to the contractual structure of home office agreements, which employers should use and employees should be aware of.