10 questions & answers about home office

Home office is definitely an unstoppable trend for many professions and businesses. This article is intended to provide a brief overview of ten of the most important issues.

1. May my employer force me to work from home?

Unless the topic of home office is explicitly written down in the employment contract, an employee may not be sent to the home office against his/her will. By the way, this is also true in the current times with Corona closures. Whether you are doing yourself a favor – in terms of the working atmosphere – is something everyone has to know for themselves. However, in the home office, the same entitlements to breaks and the obligation to observe working hours apply. Overall, however, it is clear that refusal to work from home alone, for example, is not grounds for dismissal. In any case, you should be self-confident and insist on financial and other support from your employer in addition to clear regulations on home office.

2. Do I have a right to a home office?

Likewise, there is no entitlement to a home office. Many companies nowadays do offer the option of a home office. However, if nothing is regulated here in the contracts or in the company agreements, the company can force the employee to perform the work in the office. Nothing else applies here if there are currently no other care options for children due to daycare center closures or the like.

However, this may be different if the employment relationship is governed by a collective bargaining agreement or a works agreement that regulates working from home or at least the possibility of doing so.

3. what working hours apply home office?

In Germany, many employers still have difficulty with home offices because they do not trust their employees. The fact that this is unjustified or, just as in other constructions, a question of the individual case, is shown by many positive reports, especially from the startup world in the USA.

In principle, it is therefore possible to agree on so-called trust-based working hours. In this case, the agreed working time must be performed without, however, any control of the time allocation. But beware: The working time must nevertheless be documented and recorded in a comprehensible manner. This has just been decided with, with all clarity, the European Court of Justice.

4. how am I protected in the home office?

All the laws that apply elsewhere in the office apply in your own study. This includes the Occupational Health and Safety Act and the Workplace Ordinance. The employer must ensure that the health of employees is not endangered even in the home office. Therefore, the physical and psychological risks, the distinguishing activity profiles, and § 618 BGB, with extensive case law, must also be considered. Since the employer otherwise also risks fines, the employer must generally also be granted the right to inspect the home workplace.

5. what other regulations apply?

Even in the home office, the employer must ensure the data protection of customers and partners, but also of employees, and may also monitor compliance with these very requirements on the part of the employee in the home office. There should be a regulation in a separate agreement about the handling of company resources, without which one should not work regularly in the home office.

6. who pays the costs of the home office?

Even in the home office, the employer is obliged to provide the costs for the operating equipment. Thus, no employee is required to use his or her own laptop or cell phone, or even to purchase a printer, scanner, or the like. If the employer purchases these technical aids, they naturally remain the property of the employer. This is also important to note, as otherwise there may well be adverse tax consequences for the employee. For this reason, an agreement should also regulate, among many other aspects, whether the hardware may be used privately.

7. can I claim expenses for tax purposes?

Home office expenses, provided they are not covered by the employer, can of course be claimed against tax. However, this only makes sense insofar as these costs do not fall below the flat rate for income-related expenses, which is always taken into account in a tax return. However, in the case of higher expenses, other tax aspects must also be taken into account, e.g. how a home office must be set up so that other costs such as rent can also be claimed and that the equipment must be appropriate. A gaming PC will be rather difficult to deduct in full unless you work in the gaming industry. There will be a separate article on this soon.

8. and what about the landlord?

In the home office, it should further be noted that a rented apartment may not, in principle, be used for commercial purposes. It is true that pure teleworking is still within the scope of the agreed contractual use. However, if customers regularly come to the apartment, for example, or if several employees regularly work in one apartment, the landlord may prohibit the corresponding use or demand a rent increase. The same applies, of course, if extreme noise pollution (including, for example, a lot of music or due to the care of other people’s children) occurs as a result of home office use, an extremely large amount of additional waste is produced or similar unacceptable changes occur.

9. how am I insured?

In principle, home offices are subject to the protection of the statutory accident insurance. However, this only applies to home office activities. In the past, accidents while going to the toilet or kitchen were rejected as insurance claims. It is essential to make provisions for this with the help of the employer and, if necessary, to take out supplementary insurance. The unpleasant surprise often comes after the accident, which has led to corresponding impairments in the ability to work or loss of earnings.

10. contractual agreement?

The opportunities of home office activities are great. They can, contrary to arguably numerous misconceptions of employers, serve both productivity and employee satisfaction. Nevertheless, it is advisable for both the employer and the employee to establish comprehensive agreements on the subject of home office. I can help with that. More information here.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.