The spread of the coronavirus in Germany has led to an epidemic situation of national importance. The declaration of this situation by the German Bundestag is a unique process which, as is not difficult to see, has a deep impact on many areas of life. The epidemic situation and the associated restrictions lead to in some cases extreme deviations, especially in the working environment. During the corona pandemic, a large number of employers have switched to enabling their employees to work from home. Through that, it became possible to reduce the impact of the pandemic on companies to some extent.
The last few weeks have been a special challenge for employers and employees alike, also with regard to the professional environment. However, the pandemic-related measures have also brought with them an enormous “learning effect” and have led to a considerable development of alternative or agile work opportunities outside the office workplace. Even when it comes to technology, we were pleased to see that the pandemic has led to an extremely rapid development of operational possibilities for using video conferencing and networked cooperation, which we principally welcome. Now, we are seeing that many employers would like their employees to return to the office from their home office. Against this background, we will look at the question of whether employees have a right to work from home office, even once the pandemic is over.
For starters, it can be said that even if in the past year 2019 and especially under the influence of the COVID-19 pandemic, the Federal Ministry of Labor and Social Affairs made efforts to make the business world more flexible, there is currently no legal entitlement for employees to work from home in Germany. Therefore, it is basically up to the employer to determine the content, place and time an employee has to perform their work in accordance with § 611a BGB (German Civil Code) and § 106 GewO (German Industrial Code). In some sector’s collective agreements, there are provisions on making work more flexible. These do, however, not refer to employers as a whole and we are therefore not considering them here.
Even during the pandemic, the principle is basically the same. It is up to the employer to decide whether or not he wants to allow employees to perform their work from home. This principle was confirmed by the recent ruling of the ArbG Augsburg (Augsburg Labor Court) of May 7, 2020 (File No. 3 Ga 9/20). In this case, a 63-year-old employee attempted to enforce a claim to work in the home office against his employer in an urgent labor court proceeding. By way of that, he tried to obtain permission to perform his work from home, arguing in particular that he belonged to a risk group according to the criteria established by the Robert Koch Institute, and on the basis of a medical certificate. However, the court decided that such a claim could not be derived, neither from current law nor from his contract. Even in times of the corona pandemic, it is the employer’s sole responsibility to meet obligations under § 618 BGB (German Civil Code) by taking necessary and appropriate protective measures and by exercising its right to determine performance in a discretionary manner. Even in a pandemic, there is therefore no obligation for employers to give employees the opportunity to work from home. Naturally, this applies all the more once the current epidemic situation of national importance is over.
Thus, it must be noted that the current legal situation does not provide for a legal entitlement for employees to work from home. Thus, the possibility to work from home must always be agreed upon individually with the employer. However, the German Federal Minister of Labor Hubertus Heil announced in July 2020 that he would present a draft law shortly, which would enable employees to assert a claim for home office against their employer. Immediately after this initiative, criticism was voiced from various sides, although there were also positive voices. So far, however, no further details of such a draft law have been released – we do not expect any quick results, however. From our point of view it is very difficult to create a legal claim that takes into account the complexity of today’s working world.