Lockdown: Can my boss force me to work?

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There was nothing more than a mere appeal when the federal and state governments called for strict homeworking last week.

"Employers are urgently asked to create generous home office opportunities," they wrote in their decision on the latest Corona protective measures.

Because the more people continue to commute to the office every day, the greater the risk of becoming infected with the coronavirus.

The problem: Basically, the boss decides whether employees are allowed to work from home or not.

“There is no general right to work from home,” explains Till Bender, Legal Protection Secretary at the German Trade Union Federation (DGB).

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"The employer has the so-called right of direction and can unilaterally determine where to work," says Philipp Byers, labor lawyer at the law firm Watson Farley & Williams.

The government's increasingly dramatic appeals to stay at home because of the corona pandemic will not change that.

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“Only if, in the case of a theoretically even stricter lockdown, the way to work would be omitted as a valid reason for which one is allowed to leave the house, the employee should stay at home,” says Byers.

"After all, an employer must not force its employees to behave unlawfully."

And yet, in exceptional cases, employees have the option of enforcing their wish to work from home.

Employees should bear this in mind: On the one hand, companies could have already drawn up their own rules for working from home - and that even before the Corona crisis.

"If there is a corresponding works agreement, this can result in a right to work from home," says Bender.

Such an agreement is not a lesser right.

“The employer cannot deviate from it unilaterally,” says Bender.

If employees are unsure of what already applies to their company, they should ask the works council, advises the legal expert.

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In addition, there are personal exceptional cases with which employees could request work from home.

“In the case of high-risk patients, the employer's duty of care can be argued,” says Bender.

However, this only applies if it is also possible to work in the home office.

And if the boss disagrees, employees would have to enforce this legally if necessary.

Those affected should therefore rather seek a conversation with the boss in order to find solutions, advises Bender.

This also applies to another exceptional case: if the employee is not safe at his workplace.

“If the employee can demonstrate that the employer has not drawn up a hygiene plan or that it is not adhered to, the employee can stay at home until he is given a proper job and the employer must continue to pay the salary,” says lawyer Byers .

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As a benchmark, the Federal Ministry of Labor's recommendations for action can be used to determine what a corona-safe workplace should look like.

"However, the employee takes a risk: If he just stays at home and a court later decides that the hygiene concept was in order, the employee is threatened with a warning or even dismissal for unexcused absenteeism," says Byers.

"In any case, there is a risk that the employer will stop paying wages."

But there is also the reverse case, in which employees are sent to the home office but would rather work in the office.

“Under normal circumstances, an employer shouldn't force its employees to do their work in the home office because it would interfere with the inviolability of the home,” says Byers.

However, courts have already decided that the corona pandemic is a special situation and that employers can therefore at least temporarily send their employees to the home office.

"For example, the Berlin Administrative Court ruled in favor of the employer in the first lockdown in such a case," reports Byers.

All those who are allowed to choose their workplace have it good.

However, there is one thing that employees should consider when making their decision: Accidents at work at home may not be covered by statutory accident insurance, warns the Association of the German Insurance Industry (GDV).

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After all, it is difficult to separate professional and private activities when working from home.

If an employee is injured in the home office, for example when fetching food or on the way to the toilet, he is usually left without legal protection.

At least that's how social courts ruled in the past.

Another example: If you drop your child off at a daycare center on the way to work, you have statutory accident insurance.

However, this does not apply to parents who fall on the way from daycare to home work, according to the GDV.

Both the State Social Court of Lower Saxony-Bremen and the Federal Social Court did not see an industrial accident in a judgment.

For employees who work at home, this means: You should check the benefits of your private accident insurance.

However, the Federal Ministry of Labor announced in October that it wanted to close existing insurance gaps.

Home office vs. workplace in the office - which is better?

Home office is on everyone's lips.

While companies are thinking about reducing office space and saving costs, not all employees are really convinced of it.

Source: WELT / Matthias Heinrich

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However, many daycare centers and schools are currently closed anyway.

“If you have to look after your children because schools or daycare centers are closed, you still have to work from home if that is possible,” says Byers.

To completely de-register from work because of childcare is only possible if there is no other reasonable option.

“Working in the home office in addition to childcare can be reasonable, it depends on the age of the child and other factors,” says Byers.

Home office is also not always home office.

There is no definition in German law for the term, which is established in linguistic usage, emphasizes Bender from the DGB.

Employers often enable their employees to work remotely.

Employees usually sit at their desks at home, but in theory they should also work elsewhere: on the train, in a café, in a holiday home.

It is different if so-called screen work has been agreed with the boss for the home office, for example.

Here, the employee usually has a permanent workplace in their own four walls.

"Most of the time, the shy employers because they result in extensive occupational safety obligations," says Bender.

The company must ensure that the space in the home office meets the same legal requirements as the space in the office.

As a rule, this means that the employer must provide suitable furniture such as an office chair or screen for the home in order to guarantee the protection of his employees.

But at least basic rules also apply to the mobile office, such as the maximum permitted working hours or the guarantee of data protection.

The employer may also have to provide the internet connection

"If the employer temporarily orders work from the home office, it is certainly unreasonable that he procures new furniture for the home office for all employees," says labor lawyer Byers.

"But he has to make sure that the employee can go about his work from home and, for example, provide him with a laptop."

If an employee does not have an internet connection, the employer may have to pay for it.

How much will the additional costs increase due to the lockdown?

Those who work in the home office incur expenses that would otherwise arise in the company.

But how much do the additional costs actually increase?

Is the new home office flat rate enough to compensate?

Source: WELT / Fanny Fee Werther

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On Monday, the DGB again demanded a legal right to work from home.

"At least where it is feasible," said DGB boss Reiner Hoffmann of the "Süddeutsche Zeitung".

It cannot be that employers alone decide on this.

It must also be ensured that no one can be forced into the home office, added Hoffmann.

Previously, the leader of the Greens in the Bundestag, Katrin Göring-Eckardt, had called for a corona occupational health and safety ordinance.

Wherever possible, employers should be obliged to offer work from home.

If it had been up to Federal Labor Minister Hubertus Heil (SPD), the federal and state governments might not have needed an appeal to employers in their latest decision.

Last year, Heil had already announced the right to work from home.

His original draft law stipulated that employees were allowed to work from home or mobile at least 24 days a year - provided there were no operational reasons to the contrary.

However, the proposal went too far for the Union parties, and Heil withdrew.

According to the current draft, employees would now only be entitled to a discussion about home office rules.

Should the employer refuse, he would have to provide plausible reasons.

However, the law would not be an innovation: In some neighboring countries such as the Netherlands, such a claim has existed for years.