According to § 3 ArbSchG (German Occupational Safety and Health Act), it is the employer’s responsibility to take measures for occupational safety and health, thus ensuring a safe working environment for employees. This also applies in principle if employees do not perform their work on the company premises, but work from home or remotely.
Although the type and scope of the concrete measures that need to be taken depend on the circumstances of the individual case, employers are regularly faced with similar questions and problems, particularly with regard to the practical implementation of the legal requirements.
The first step is regularly the risk assessment. According to § 5 ArbSchG (German Occupational Safety and Health Act), the employer has to determine which occupational safety measures are necessary by assessing the risks associated with the employees’ work.
This can already be a first challenge for a home office workplace. The private home is extensively protected by Art. 13 GG (German Basic Law), so that the employer depends on the employee’s cooperation to acquire the necessary information. The easiest way to assess the risks is to personally inspect the home office. This, however, cannot be done without the employee’s consent. Additionally, it is not always appropriate in the current pandemic situation, in which personal contacts should be reduced to a minimum.
Consequently, the employer must fulfill their obligation in another way for now. An appropriate alternative would be asking the employee for all relevant information on the conditions in their home – if possible in writing – and using this information as a basis for the risk assessment. In doing so, the employer may trust the information given by the employee, provided that this information is not obviously wrong and/or contradictory. The employer benefits in this respect from the employee’s obligations to cooperate pursuant to §§ 15, 16 ArbSchG (German Occupational Safety and Health Act), according to which employees must take care of their own safety and health at work as best as they can as well as in accordance with to the employer’s instructions. The law also specifies that they must immediately report to the employer any risks to safety and health at the home office workplace.
Since the possibilities for performing an extensive risk assessment at the home office workplace are currently very limited, the employer’s obligation to instruct in accordance with § 12 ArbSchG (German Occupational Safety and Health Act) becomes all the more important. It should thus be done as extensively as possible.
A risk assessment is also not a one-time procedure. Rather, the risk assessment must always be kept up-to-date. Employers should therefore either visit the home office workplace regularly or ask the employee whether any changes were made to the home office workplace.
Please also note that your works council (if one exists) may have a co-determination right, e.g. if methods are specified for the performance of the risk assessment of home office workplaces.