The pandemic, a Labour Code amendment, further progress in digitalisation – all these factors lead to an increased number of employees working from their homes. This naturally gives rise to discussions about the benefits and drawbacks of home office. The focus here lies primarily on legal challenges linked to work from home, and on topics which the Labour Code amendment failed to address. Are employers obliged to reimburse employees for increased costs, or provide work equipment? What is the distinction between occasional and regular work from home? What lies ahead for the employers?
1. Regular, occasional, or temporary work from home: What are the differences?
The legal regulation differs depending on whether an employee works from home on a regular or occasional basis. In the case of the latter, an agreement between the employer and the employee suffices. However, the employee’s rights are limited. On the other hand, regular work from home requires changes to the employment contract – a new specification of the place of work performance – which must be signed by both parties. The parties can even agree on several such places. The definition of “regular work from home” is unfortunately missing in the new amendment. Thus, the best approach is to assess case by case so that there is no sidestepping of the laws.
In addition to these two concepts, there is the option of “temporary work from home”, which is applicable during a state of emergency or an extraordinary pandemic situation (and two months after such a state ends). Employees are entitled to work from home, the nature of the work so permitting, and employers are entitled to request home office. However, the Labour Code once again fails to specify the details of temporary work from home, and employers and employees are left without knowing the extent of their rights and obligations. Therefore, an agreement between the parties is advisable.
2. A new approach to scheduling working hours
Based on the adopted amendment, employers are entitled to schedule working hours of those employees working from home on a regular basis. The parties can still agree that the working time will be set exclusively by the employee. In such a case, the employee will, however, lose some employment benefits, such as wage compensation for personal impediments at work and surcharges for overtime work. Another option is flexible working time, where the employee has to be available to the employer at prearranged times, and may self-schedule the rest.
3. Home office equipment & IT security
Companies with employees working from home on a regular basis have certain equipment-related obligations. They have to provide, install, and update the technical equipment and software needed so that employees can work from home. A specific arrangement between the parties is possible too; an employee may use their own hardware and software. In such a case, we recommend the parties enter into a written agreement on that subject, or amend the employment contract or the collective agreement. This is to avoid a situation where the employee uses personal equipment without the employer’s consent, relieving the employer of liability for any damage. The employee cannot claim increased costs related to the use of personal hardware and software.
Employers also should bear in mind the obligation to ensure the protection of the data processed and used by employees working from home. Problems occur when employees use their own hardware and software. GDPR standards are set high and, in some professions, it is technically impossible to achieve a sufficient level of data protection. The solution for that is supplying the employee with company equipment.
4. Reimbursement of home office expenses
The new regulation obliges an employer to reimburse its employees working from home for demonstrably increased costs resulting from the use of the employee’s personal hardware and software. The reimbursement, however, does not occur automatically. First, the use of personal equipment must be agreed on in the employment contract or collective agreement. Second, the employee has to provide evidence of increased costs. Compensation in the form of a one-off payment is therefore not possible. If the employee needs and purchases equipment (e.g. keyboard, mouse), they can claim reimbursement by just handing over a receipt. However, when increased electricity or internet costs come into play, things get a bit more difficult. It is practically impossible to separately determine the exact work-related consumption of such utilities. Higher electricity bills during periods of home office do not automatically mean that the increased power consumption relates to the employee working from home.
5. Occupational health and safety: No progress in sight
The topic of occupational health and safety in home office unfortunately remained untouched by the amendment of the Labour Code. Authorities also did not contribute to resolving the practical issues. Employers are thus still responsible for the occupational health and safety of their employees working from home. A positive view towards the guidance was published by the National Labour Inspectorate on home office during the pandemic. However, it is applicable only until two months after the state of emergency is lifted, and its potential future use is uncertain. Under the guidance, employers are not responsible for the condition of the home workplace, including the condition and inspection of electrical installations or heating appliances. They, however, cannot relieve themselves of the responsibility to provide suitable equipment, compliant with health and safety requirements. Along with a laptop, employers have to provide their employees with an ergonomic keyboard, a mouse, and a monitor. Employees using a display device (e.g. monitor) must take regular breaks, at least after each four-hour period of continuous work.
6. Monitoring of employees working from home
The performance of work from home has, without any doubt, affected the privacy of employees and their right to protection of personal data. Employers have to deal with challenges related to technical conditions enabling work outside of the office, in particular, with respect to tasking employees, checking outcomes, and recording time worked. Since employers, in most cases, want to monitor their employees during work, several new methods for monitoring employees working from home have been introduced, e.g. regular videocalls, employee monitoring software, and time recording software. When introducing such measures, employers should keep in mind their limitations and obligations resulting from the Labour Code and other legislation. Moreover, if employees’ personal data are involved, employers are confronted with even more obligations under GDPR. These include an information obligation, an obligation to conduct a balancing test (balance the employer’s legitimate interests against the interference with the employee’s privacy), or to carry out a data protection impact assessment.
The pandemic has undoubtedly forced many employers to change their view on working from home. While this form of work has numerous advantages for both employers and employees it still requires a longer time to see all its cons and pros. The end of applicability of temporary work from home will require new standard internal rules for home office to be drawn and introduced in the following months. Experience from the past months of forced home office will be a helpful resource in this task.
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24. May 2021 at 0:00