The Mobile Work Act

Right to work in a home office?

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The Mobile Work Act: Right to work in a home office?

Law firm for labor law in Kerpen, Cologne and Witten

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Due to the current increase in the number of infections, the need for stricter corona protection measures is also increasing at the same time. Especially in the Labor law fundamental changes are to be expected. In this regard, Federal Minister of Labor Hubertus Heil again wants to introduce a home office obligation. The latter submitted a second revised draft bill for his "Mobile Work Act" for departmental coordination on Nov. 26, 2020. The draft has since been submitted for voting within the German government. 

However, flexible forms of work are not only gaining in importance in the context of the Corona pandemic. In particular, mobile working is helping employees to achieve a better work-life balance. In the following, the currently discussed topic around the home office obligation will therefore be the subject of this article.

What does mobile work involve?

Definition of mobile work

The term mobile work is defined in the draft law as follows: An employee works in a mobile manner if he or she performs the owed work performance using information technology outside the place of business from a place or places of his or her choice or from a place or places agreed upon with the employer. According to the draft, this wording is intended to make it clear that activities that require job-related mobility (e.g. driving services) and cannot be performed using information technology are not to be covered by the term mobile work.
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Main features of the Mobile Work Act

Main features of the Mobile Work Act

First of all, the Mobile Work Act essentially stipulates that the employer must always discuss the employee's request for mobile work. If an agreement fails, the employer must give reasons for its negative decision in due form and time within two months. If the employer refuses to discuss the matter or fails to give reasons for the decision in due form and time, mobile work shall be agreed in accordance with the employee's wishes for a maximum of six months by virtue of statutory fiction. Regular mobile work shall also only be possible after specifying the start, duration, scope and distribution of the mobile work.

Furthermore, the law provides for a regulation to harmonize insurance coverage. Under current law, mobile work is already covered by statutory accident insurance. In addition to the actual insured activity, the insurance coverage also extends to so-called company routes, such as the route to printing in another room. Among other things, this should apply both at the company site and during mobile work. However, there are differences and thus gaps in the insurance cover for journeys in one's own household to fetch a drink or to eat. According to the case law of the Federal Social Court, these journeys were previously insured on the company premises, but not in the home office. This is now to be brought into line with the law.

A far-reaching opening clause for collective agreements or works agreements is also provided for. Among other things, these also offer the possibility of deviating from the new statutory provisions in collective agreements and works agreements, even to the detriment of employees.

Introduction of a duty to discuss

The obligation to discuss

The draft law no longer provides for a statutory entitlement to a minimum number of mobile working days. Instead, it is left to the company and collective bargaining parties to create concrete conditions for the permissibility of mobile work. Therefore, the following applies: The only thing that is required is a special agreement between Employer and employeein order to be able to work in a home office. Thus, neither the employer has a legal claim that work must be done at home, nor do employees have a legal claim to perform their work in the home office. 

Instead, an individual agreement is required. In companies with a works council, this can be based on a company agreement on home office. Otherwise, the parties to the employment contract are left to negotiate the details of the home office activity. The problem here, however, is that employment contracts always provide for a written form clause. Thus, it is by no means sufficient if the employer and the employee merely agree that work in the home office is permitted. This discussion process therefore creates an administrative burden and generates costs.

Hidden legal claim?

The hidden legal claim

If the agreement between employer and employee fails, the decision to refuse must be explained to the employee in writing and reasons must be given, as explained at the beginning. However, the wording of the law does not specify any concrete requirements for the reasons for refusal. It is therefore questioned whether the vague wording does not indirectly create a legal right to mobile working. 

This is justified by the fact that, among other things, it remains open how detailed the employer must justify his refusal. For example, it could be sufficient for the employer to reject the employee's request by e-mail for "operational reasons". According to the explanatory memorandum to the law, however, these must not be extraneous or arbitrary. This is intended to ensure that labor courts can examine whether the rejection of mobile work is justified.

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Recording of working time for mobile work

Working time recording

The employer will also be required to record the beginning, end and duration of the entire working time on the day of the mobile work performance. The draft thus goes beyond the current documentation requirements under the Working Hours Act. This recording obligation is intended to ensure compliance with the maximum daily working time and the minimum daily and weekly rest periods. 

In the absence of a formal requirement, both manual and electronic time recording are possible. However, the recording can also be carried out by the employee. However, the employer remains responsible for the proper recording. Furthermore, the employer must inform the employee of the recorded working time upon request and hand over a copy of the timesheets.

Responsibility for occupational safety

Occupational safety and health

Occupational health and safety must also be guaranteed for mobile work. The regulations of occupational health and safety shall therefore remain unaffected. For example, the employer must inform the mobile employee in text form about how his or her safety and health are ensured.

Employers must also, in particular, carry out a risk assessment in accordance with the Workplace Ordinance carry out. Difficulties may arise from the fact that the employer's ability to influence mobile workplaces is limited.

Conclusion

Ultimately, the new draft law means for employers that the responsible contact persons should first be sensitized to this topic. After all, if the law is passed and comes into force, they should be able to assess how to carry out such a discussion and know that this requires action within a deadline. In addition, consideration should possibly be given to negotiating a company agreement on mobile working with the works council.

Whether that law will lead to more flexibility for employees, however, remains questionable. It is true that the new draft law fundamentally rejects a legal entitlement to mobile work. However, the discussion process envisaged instead causes a great deal of expense. In addition, the draft is partly unclear in its regulation of the notification of reasons for refusal, thus creating legal uncertainty. The planned regulation on occupational health and safety describes the known status quo without added value. Therefore, the question generally arises as to whether the law is really needed.

The further course of the legislative process therefore remains to be seen.

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