Germany: No General Entitlement to Home or Single Office due to Corona Pandemic

The Labour Court of Augsburg had to rule on an application for injunctive relief. The applicant, a 63-year-old employee, asked his employer to allow him to work from home as long as there is a risk of Covid-19 infections in the workplace. If this was not possible, he requested to be provided with a separate, individual workspace on the employer’s premises. To support these applications, he presented a medical certificate certifying that he had an increased risk for serious illness if he were to contract the coronavirus.

The Labour Court determined that the employee’s requests were unjustified. As there is no legal entitlement to home office under German law (yet), such entitlements can only arise from the employment contract or an applicable company agreement, which is not the case here. The medical certificate was not a sufficient legal basis to entitle the employee to a home office or a single office, as it is up to the employer to decide how he fulfils his health and safety obligations.

The ruling shows that the corona pandemic has fanned the ongoing conversation of how our work environment will look in the future. In this context, a draft of the “Mobile Working Act” which the Federal Ministry of Labour and Social Affairs had prepared, was recently circulated in the German press. The law, which was aimed at establishing a statutory entitlement to home office, proposed the following key regulations:

• employees shall have a right to home office work 24 days per year;
• employers would have to present compelling operational reasons to be able to refuse this right to work from the home office, or they would have to justify why the work is fundamentally not suitable for being performed from a home office;
• in order to introduce and shape mobile work, there shall be a right of co-determination for trade unions, staff and works councils;
• a firm agreement should be reached between employers and employees, on when (and when not) employees must be available at home and when not;
• during the fixed working hours in the private premises of the employees, the statutory accident insurance shall apply;
• digital working time recording is to become mandatory.

However, the German Federal Chancellery refuted the draft and deemed it unsuitable for further discussions among the individual federal ministries. While this is almost certainly the end of this particular legislative proposal, there are likely be others that will revolve around corresponding themes in the near future.

Pusch Wahlig Workplace Law attorneys are available to assist you with these and other workplace issues. For more information, visit https://pwwl.de/

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.