Corona crisis – Working from home: Home office & Co – what rules apply?

In order to contain the corona pandemic and reduce social contacts – also in the work environment – the Bundesministerium für Arbeit und Soziales/ German Federal Ministry of Labor and Social Affairs (BMAS) has issued the Corona-Arbeitsschutzverordnung/ Corona Occupational Health and Safety Ordinance (Corona-ArbSchV). This also contains regulations on home office.

In the case of office work or comparable activities, the employer must offer employees the opportunity to carry out these activities in their homes if there are no compelling operational reasons to the contrary.
The Corona-ArbSchV is valid for a limited period until March 15, 2021. UPDATE as of March 10: The deadline has been extended to April 30 2021.

• Mobile working, teleworking, home office, working from home: How do you distinguish between the mobile forms of work?
• Facilities/ costs: What needs to be considered?

Corona crisis – Working from home: Home office & Co – what rules apply?

The employer decides whether an activity is suitable for the home office and whether there are any operational reasons to the contrary. In principle, comparable activities exist if they can be performed from home using information technology. Compelling operational reasons may stand in the way of the home office if operational processes would otherwise be significantly restricted or could not be maintained at all.

However, the Corona-ArbSchV only imposes an obligation on the employer to offer the employee the opportunity to work from home. There is no obligation on the part of the employee to accept this offer. The employer can therefore still not unilaterally order the performance of work in the home office. Corresponding considerations remain reserved for special individual cases.

Delimitation of the different forms of work

1. Mobile work

Mobile working has not yet been defined by law. The decisive factor for mobile working is that the connection to the company is established via information and communication technology – i.e. via mobile devices (e.g. laptop, tablet, smartphone). In mobile working, the employee is not tied to a fixed (home) office. The employee can typically perform the work at changing locations outside the company.

2. Telework

In contrast to mobile work, telework is tied to a fixed workplace that the employer sets up for the employee in his or her private space.

3. Homeoffice

The term home office is often used synonymously with teleworking and describes a special form of work in which the employee performs all or part of his or her work within his or her private sphere. The concrete form of home office depends on the individual or collective legal regulations.

4. Home work

A homeworker as defined by the Heimarbeitergesetzes/ Homeworkers Act (HAG) is a person who works for gain in a place of his own choosing (his own home or a place of business of his own choosing), either alone or with members of his family, on behalf of a tradesman or an intermediate master, but who leaves the exploitation of the results of his work to the tradesman who directly or indirectly places the order. Home workers have a special status under labor law, as they are not employees. Special protective regulations apply to them.

Setup / cost of the workplace

In principle, the employer is responsible for the equipment of the workplace if he agrees with the employee on regular work at a specified teleworkplace or home office. This results from the Arbeitsstättenverordnung/ Workplace Ordinance (ArbStättV). The employer must therefore provide the employee, at his or her own expense, with the work equipment required for the home office workplace, e.g.

• electronic devices such as computers, printers
• Furnishings such as office chair, desk, etc.

If the employee brings these in himself – even partially – by using his own desk or computer, for example, he may have a claim for expenses against the employer. In this case, the employer and the employee should include regulations on bearing the costs in the agreement on the home office activity.