Special features for employees in IT law

Probably the most significant element of IT labor law at the present time is the introduction of "home offices" since the beginning of the Corona pandemic (COVID-19 pandemic) and the associated labor law peculiarities for employees. As is the case for many labor law problems, the employment contract concluded between the employee and the employer is initially decisive in such a case.

According to current case law, the employer cannot unilaterally base the arrangement of a home office on the right of direction under Section 106 sentence 1 GewO (LAG Berlin-Brandenburg, ruling dated November 14, 2018 - 17 Sa 562/18). As a mirror image of this, there was previously no obligation on the part of the employer to offer home office to the workforce unless this was provided for in the relevant employment contracts.

However, this has changed with the introduction of the new Corona Occupational Health and Safety Ordinance of January 21, 2020: Pursuant to Section 2 (4) of the Corona Occupational Health and Safety Ordinance, in the case of office work or comparable activities, the employer must offer employees the opportunity to perform these activities at home if there are no compelling operational reasons to the contrary.

In other words, if the employment contract does not provide for any other regulations and if an activity is performed that falls within the scope of Section 2 (4) of the Corona Occupational Health and Safety Ordinance and there are no compelling operational reasons to the contrary, there is a right to, but not necessarily an obligation to, a home office. What else employers and employees need to be aware of in the context of the home office can be found, among other things, in the FAQ of the Federal Ministry of Labor and Health on the new Corona Occupational Health and Safety Ordinance.

However, it is still up to the employer to decide exactly how work is performed in the home office. In particular, the employer must take organizational and technical measures to ensure compliance with statutory regulations - especially those relating to data protection (see in particular the recommendations on secure mobile working in the home office of the German Federal Office for Information Security).

Despite the changed backdrop, the applicability of the Occupational Health and Safety Act and the Working Hours Act remains unaffected - employees are therefore neither unprotected nor worse off than when they work conventionally on site at the company's premises.
In this context, further problems of IT labor law also arise: To what extent is it permissible to use the employee's private IT in the context of the home office and to what extent may the IT resources provided by the employer in the context of the home office be used for private purposes?