Ein Überblick mit Handlungsempfehlungen
The Corona Occupational Health and Safety Ordinance (Corona-ArbschV), which will apply from 27.01.2021 for a limited period until 15.03.2021, has, among other things, imposed an obligation on employers to offer their employees the opportunity to work in a home office in the case of office work or comparable activities, if there are no compelling operational reasons to the contrary.
But what exactly does this obligation mean in practice? We give you an overview.
First of all, it follows from the regulation that the employer is in principle obliged to offer home office work to employees who perform suitable activities.
In this respect, it is important to note that employees do not have to approach the employer to inquire whether they can work in the home office. Rather, the employer must actively approach employees and offer home office work.
Only if there are compelling operational reasons to the contrary does the employer not have to offer the option of working in a home office.
The ordinance does not specify what constitutes compelling operational reasons. Rather, employers must define this for themselves.
However, the published FAQ of the Federal Ministry of Labor and Social Affairs offers a little help as to what is meant by compelling operational reasons. According to this, these are "provable and comprehensible operational reasons" because otherwise the rest of the business can only be maintained to a limited extent or not at all. The following are listed as examples:
Ancillary activities associated with office duties, such as processing and distributing mail
Processing of incoming and outgoing goods
Repair and maintenance tasks (e.g. IT service)
In addition, technical and organizational reasons can also be considered, e.g.
Unavailability of the required IT
Necessary change in work organization
These reasons, however, only until the impediment has been removed. In addition, data protection may also constitute a compelling operational reason.
The reasons for refusal must be documented. The competent authority can demand information from the employer in this respect and also the provision of corresponding documents.
It follows from the rule-exception relationship that the standard for refusal is very high and employers really only have to refuse to offer the home office if an activity in the home office cannot be realized for operational reasons.
Enforcement possibilities of the employees
The ordinance does not provide employees with a subjective right of action to enforce the home office against the will of the employer. However, employees have the option of reporting the employer to the occupational health and safety authority or the accident insurance carrier if, in their view, home office work was wrongfully not offered.
In addition, employees can also turn to the works council.
No home office obligation for employees
Employers are required by regulation to make employees an offer to work from home. However, employees are not obliged to accept this offer. For documentation purposes, however, it is best to record both the offer and the refusal in writing.
Agreement or arrangement with works council required
The employee cannot freely or even spontaneously decide whether to come to the office or not. Without an agreement, employees may not simply stay at home and work from the home office. An agreement is therefore required between the employee and the employer, in which the details regarding working from home are regulated.
In companies with a works council, the employer may only offer home office if the works council agrees. A regulation is therefore required in the company, e.g. in the form of a temporary regulation agreement or a works agreement.
If no agreement is reached between the employer and the works council because there is disagreement about the home office regulations, the employer may not introduce home office, as it would otherwise violate the works council's co-determination rights. Even if there is no agreement with the works council, there is therefore likely to be a compelling operational reason for not offering home office.
It is important to note that under the ordinance, there is no obligation to agree on or set up a telecommuting workplace in accordance with the Workplace Ordinance. It is therefore also possible to agree on mobile work.
Area-wide controls are not to be expected, but there will certainly be random checks. Particularly since the topic is currently all over the media, employers would be well advised to observe the regulation and offer home offices where possible. After all, the greatest risk of inspections and sanctions is likely to be when dissatisfied employees turn to the occupational health and safety authorities.
Since the ordinance was issued on the basis of the Occupational Health and Safety Act, the sanction options also result from the occupational health and safety regulations. These can be, for example, a (temporary) shutdown of operations (however, regularly only after setting a deadline for the execution of the order) or a fine of up to EUR 30,000.00.
Recommendations for action
Analysis of the activities for which home office is possible as well as those activities for which compelling operational reasons stand in the way
Written documentation of the compelling operational reasons
If a works council exists: Conclusion of a regulation agreement or a works agreement for the temporary introduction of home office/mobile working
Written offer to the employees who can work in the home office, stating the conditions/details or reference to the collective agreement concluded
Documentation of the acceptance as well as the rejection of the offer.
In the case of employees who cannot/won't work in a home office, the employer must ensure that ten square meters are available per person when rooms are used by several people. If this is not possible due to the activities to be performed, other suitable protective measures must be taken, e.g. ventilation measures, partitions between the persons present in the room. In companies with ten or more employees, these must be divided into fixed work groups that are as small as possible. Contacts between the individual work groups in the course of operations, as well as changes to this division, must be reduced to the minimum necessary for the operation. If distances and occupancy regulations cannot be adhered to, or if hazards from increased aerosol emissions are to be expected during activities carried out, employers must provide medical face masks, e.g. OP masks or FFP2 masks. Employees are required to wear the masks provided.