In times of the corona pandemic, the way we work has changed significantly. More and more companies are turning to hybrid work, in which employees work both in the office and from home. However, this poses a number of challenges in employment law. In this article, we will look at the most important aspects of hybrid working in employment law and provide solutions.
Key facts
- Hybrid work is only indirectly enshrined in employment law. Legislators have so far only defined “teleworking” on the basis of the Corona Protection Ordinance.
- This means that companies allow their employees to work in their own homes at fixed times.
- However, company agreements can be a useful addition here to give employees more legal freedom.
- Important cornerstones for hybrid work in employment law are occupational safety, data protection & home office equipment.
Legal framework for home office & mobile work
A variety of terms are currently circulating in the media, such as “home office,” “mobile working,” “teleworking,” or “remote work.” However, the boundaries between them are often unclear and they often lead to confusion. The situation in which many had to find themselves during the pandemic period is often generally referred to as “working from home,” although it is actually a more specific way of working.
Legally speaking, there are these various forms of Work models of the future not. This is because the Workplace Ordinance (ArbstätTV) only regulates the legal requirements for so-called teleworking in accordance with Section 2 (7).
By this, the legislator means workplaces that are permanently set up by the employer in the private sector of employees, for which the employer has set a weekly working time agreed with the employees and the duration of the installation. These jobs for “hybrid work” are then also defined by labor law. This means that working hours and technical equipment for both workplaces must be set by the employer.
Contractual arrangements
For hybrid work In principle, it is not necessary to conclude a contractual agreement. However, when introducing the switching model, it is advantageous to conclude a written agreement on how to deal with working from the home office — especially from an insurance perspective. Here, the equipment can be specifically defined by the employer, the duration or frequency of home office or working hours and thus sets Rules for hybrid work firm.
In companies with a works council, a so-called Operational agreement set up, which must be signed by employees. The rights and obligations of both sides are recorded here.
In companies without a works or staff council, individual contractual arrangements are required for each employee. The agreement determines the frequency and duration of working from home and the financing of equipment by the employer and also regulates accessibility and data protection.
Working time arrangements
One of the biggest challenges In hybrid work, employment law regulates working time. The Working Hours Act applies both to working from home and to working remotely. It states that the employee may not work longer than eight hours on weekdays and must take a rest period of eleven hours between work sessions.
It is difficult to measure the exact working time of employees working from home. One solution to this may be that working hours are agreed and employees must stick to them. Another option is to use time tracking software to record working hours. Since from 2023, the obligation to Working time recording In Germany, such software must necessarily be introduced.
Home office equipment
If hybrid work is agreed between employer and employee, companies must provide the necessary equipment for working from home. Section 2 (7) of the Workplace Ordinance clearly states that a VDU workplace including furniture must be provided.
This is also in the employer's interest because despite working from home, a risk assessment must always be carried out. However, since working from home is about the privacy of employees, this is difficult to implement in practice. Nevertheless, companies can already take precautionary measures with ergonomic equipment.
Work safety in the home office
Here, too, there is a clear distinction in employment law when it comes to hybrid work: Once again, only the teleworking model applies. According to Section 5 of the Occupational Health and Safety Act, companies are generally required to carry out a risk assessment of working conditions. This applies regardless of the place of work.
For hybrid work, this regulation in employment law often means that the technical and ergonomic equipment must be provided by the employer. A risk assessment in terms of occupational safety must therefore always be carried out. It is therefore important that companies inform their employees how they can make their workplace safe. This can be done, for example, by means of a checklist that lists the most important safety measures.
But the narrow definition of teleworking at fixed times makes the issue of liability a legal grey area in many areas of employment law. Because insofar as home office or mobile work is carried out outside the contractual agreements, the Workplace Ordinance does not apply in principle.
Data protection and IT security
The introduction of mobile work models brings with it specific new requirements for information security. Due to new entry points in the home office, the encryption of data transmission is becoming increasingly important. When data and information is shared outside established and secure corporate networks and offices, it is up to organizations to ensure an appropriate level of security. Decentralized devices must be managed centrally or protected by solid patch management.
However, employees, just like companies, must comply with their duty of care. They are responsible for their employer's IT security while working from home and must independently ensure the protection of sensitive information and access to the company network. In addition, remote attacks have an increased chance of success. In addition to the technical conditions in working from home, one explanation for this increased success is limited and often insufficiently regulated communication channels with colleagues. The informal exchange of information therefore appears to offer a certain barrier against phishing attacks.
