Mandatory home office explained: How German employers can add value

In order to effectively contain the COVID-19 pandemic, legislators have enacted new regulations. In Germany, for example, a regulation will soon come into force that includes mandatory home office work. What are the concrete consequences for employees and employers in practice? And why would an individual right to mobile working be the better option? In this article, we analyze the situation.

COMPULSORY HOME OFFICE LEAVES MANY QUESTIONS UNANSWERED

Working from home wherever possible: for weeks now, politicians have been calling on companies and employees alike to follow this maxim. This is the only way to achieve two important goals: To relieve the burden on public transport and to reduce contacts at the workplace to a minimum. Since many companies - or their employees - still fail to comply with this recommendation, the German government has responded: With a home office requirement - so to speak. For what has emerged is a tenuous compromise. Many employees - and also their employers - would have liked more clarity in connection with the regulation.

THE CURRENT FIGURES REGARDING REMOTE WORK

In November, only 14 percent of employees nationwide had recently worked primarily from home, according to a study by the Hans Böckler Foundation. In the period of the first lockdown in April 2020, the figure was 27 percent.

According to the latest estimates from the Institute for the Study of Labor (IZA), however, more people are currently working from home again in January 2021: 25 percent. According to the Ifo Institute for Economic Research, however, the full potential is far from exhausted: a share of up to 56 percent could be possible.

One thing is clear: not all jobs are suitable for remote workers - just think of all those who work in production or nursing. Nevertheless, it is clear that there is still room for improvement. And even if regulations can never be the final word: on a transitional basis, a requirement to work from home can certainly be a sensible means of increasing the rate of home-based work.

It is true that there is now a fundamental home office obligation for companies. Or rather: an order to enable work in the home office. But no individual right to remote working is derived from this for employees. And that is precisely what would have been desirable - especially during the pandemic, but also beyond it. Not only in business, by the way, but especially in the public sector, because public authorities in particular often bring up the rear when it comes to alternatives to classic working models.

The bottom line is that many human resources experts (and others) have long been convinced that the future lies in agile, flexible and creative working. Especially in areas where quick decisions and a high capacity for innovation are required, new ways of thinking are needed - and ultimately a corporate or organizational culture that is guided by trust and transparency.

In forward-looking models, on-site presence is no longer necessary. Instead, the office building becomes a kind of informal meeting point, while mobility increases. The associated advantages are obvious:

BENEFITS OF RIGHT TO HOME OFFICE DURING THE PANDEMIC

• Comprehensive reduction of contact points
• No commuting and thus no need to use public transportation
• Virtual instead of face-to-face meetings and thus avoidance of contact points

BENEFITS OF THE RIGHT TO REMOTE WORK, INDEPENDENT OF THE PANDEMIC

• Employees are being trained in digital skills by making greater use of virtual tools (communication, project management, etc.).
• There is greater flexibility due to changing work locations.
• It is easier to develop a work-life balance.
• The office becomes an informal meeting point where colleagues meet as needed.
• Fewer people in the office means that space and its related costs can be saved.
• Reduced energy consumption contributes to climate protection.
• More efficiency is achieved by focusing on operational activities.
• Considerable improvements result with regard to the corporate (and trust) culture.
• It is easier for all those involved to plan when it is clear who works from where and at what intervals.

More information about the benefits of remote work and how to make it work.

Instead of granting employees the individual right to work from home, the regulation that has now been passed starts at the other end: It obliges companies to make home office the norm, and only for a limited period of time.

WHAT DOES THE REQUIREMENT TO OFFER REMOTE WORK MEAN?

According to the new SARS-CoV-2 Occupational Health and Safety Ordinance, as of Wednesday, January 27, 2021 (until initially March 15, 2021), the obligation applies to "offer home office as far as this is possible according to the operational circumstances and to reduce operationally related personal contacts through lower room occupancy." Ergo: Employees must be offered the opportunity to work from home "if there are no compelling operational reasons to the contrary.

The adopted regulation differs from an initial draft ordinance presented by the Labor Minister Hubertus Heil (SPD) in the run-up to the federal-state consultations. This was more binding and, not least, included a paragraph regulating the issue of administrative offenses and fines. It was also intended to grant extended powers to the control authorities of the federal states. This leaves questions - and points of criticism:

PROBLEM 1: STRUCTURE OF THE REMOTE WORK OBLIGATION

It is true that, as a rule, the boss can no longer insist that employees come into the office. However, there is a lack of concrete evidence as to what constitutes "urgent operational reasons" for refusing home office offers. It has not been clarified, for example, whether a lack of technical equipment is already sufficient to oblige employees to be present after all. At least labor law experts are largely in agreement on one point: the burden of proof lies with the employer.

PROBLEM 2: INDIVIDUAL RIGHT TO REMOTE WORK

Although employers must allow workers to work from home, this does not - paradoxically - give employees an individual right to demand that they work from home. It is true that the company could be reported to the occupational health and safety authority or the accident insurance institution if the home office obligation is not complied with without sufficient reasons. But of course hardly anyone will want to do that. Thus, it may remain difficult to enforce the home office right in individual cases.

PROBLEM 3: ACCOUNTABILITY

It is true that the occupational safety authorities of the German states, the employers' liability insurance associations and the accident insurance institutions have a fundamental control function - certainly also with regard to the enforcement of the regulation that has now been adopted. However, this is likely to be difficult to fulfill in practice, so that comprehensive inspections are not expected. It is also unclear what role works councils will play in this context. It is true that one of their tasks is to stand up for the interests of employees - also with regard to working conditions. However, it is doubtful whether they are willing to adequately support mobile working.

PROBLEM 4: SANCTION OPTIONS

In most cases, regulations can only be enforced if the corresponding violations are also sanctioned. But these consequences are not easy to draw: Administrative offenses must first be verifiable. Without concrete evidence, this is difficult for the authorities. And even if they do, penalties are relatively low: Currently, there are only plans to impose fines of up to 5,000 euros. In addition, there is the option of prohibiting operation in the affected area by the authorities - which is likely to be much more painful.

WHAT SHOULD YOU PAY ATTENTION TO WHEN YOU ARE WORKING ON THE PREMISES?

The list of measures employers must take is extensive if they consider it essential for their employees to be present:

• Review and update of the risk assessments required by occupational health and safety law.
• Specification of a minimum area of 10 square meters per employee if several people are working in rooms at the same time.
• Provision of medical face masks for employees if this is not possible and the incidence value in the region is over 50 new infections per 100,000 inhabitants within one week.
• Rapid weekly corona testing if regional incidence is higher than 200 per week.

HOME OFFICE REQUIREMENTS AND HR

It is to be hoped that the regulation that has been adopted - despite the lack of controls and sanctions - will provide short-term relief over the period of the pandemic. But executives and managers in companies should keep an eye on the future and consider remote working as a benchmark for the future today. After all, it represents an opportunity to allow more mobility and more freedom even after the corona crisis has passed. After all, innovation and employees' own initiative are only partially dependent on their place of work.

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PUBLIC SERVICE VERSUS CORPORATIONS

The direction is correct: As early as mid-2020, more than half (54 percent) of companies in Germany were planning to establish remote work on a permanent basis. This is according to a study by the ifo Institute, which is based in part on evaluations of data from current ifo company surveys and a member survey of the LinkedIn network. The situation is different in the public sector, however. A survey published at the beginning of December 2020 by the German Association of Towns and Municipalities shows: 88 percent of municipal employers do see the pandemic as a driver of digitization. But only around 50 percent are at all willing to enable home office. The other half refuse completely. 

A study by the DAK (July 2020) shows that employees for their part welcome this form of work, which is still comparatively new in practice: 56 percent of those who regularly work at home believe they are more productive there than in the office. Two-thirds reported that they can better balance work and family. A similar number are happy about the time saved since the commute to work has been eliminated.

WHAT DO EMPLOYEES NEED TO CONSIDER AT THE MOMENT?

ARE EMPLOYEES ALLOWED TO TRAVEL TO THE OFFICE DESPITE HOME OFFICE OBLIGATIONS?

"There is no obligation for employees to compulsorily use home office," the current draft states. Conversely, employers may not unilaterally instruct employees to work from home. However, company agreements concluded between employer and employee can certainly stipulate this.

ARE EMPLOYEES ALLOWED TO EAT IN CAFETERIAS?

A ban on eating together in company canteens or tea kitchens was planned - but it never came. The argument makes sense: Under the current regulations, canteen operation would hardly be possible anyway. "Food to go" is currently the standard.

WHAT RULES APPLY TO EMPLOYEES IN QUARANTINE?

As long as a quarantine is "only" carried out as a precautionary measure, without an infection having been detected, the employee concerned is obliged to work under labor law - insofar as this is practicable. And only if the appropriate equipment, such as a company laptop, is available. However, it is also possible to demand alternative activities. Example: an employee working in the nursing service can be used for administrative work from home during the quarantine. If, on the other hand, the employee is actually infected, a sick leave is posted.

Moreover, employers are not allowed to use software to monitor what employees do in their home offices without good reason. But that's not even necessary - because ultimately it's the work results that matter. This change in mindset is necessary to ensure that the new mobility arrives in companies in the long term - to the benefit of all sides.

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