Germany: New Right to Work From Home During the Pandemic

On 19 January 2021, the German Chancellor and Federal Prime Ministers passed a new resolution on further measures to combat the Corona pandemic.

The Federal Ministry of Labor and Social Affairs implemented this resolution in a new ordinance, the Corona-ArbSchV, which will enter into force on Wednesday, January 27, 2021 and will initially apply for a limited period until March 15, 2021.

The Key Points of the New Corona-ArbSchV at a Glance:

• Employers are generally obliged to offer working from home (in Germany commonly referred to as "home office");
• If rooms have to be used by several employees at the same time, 10 m² must be available per person;
• In companies with ten or more employees, they must be divided into fixed working groups that are as small as possible;
• Employers must provide medical face masks.

1. Can the Employer Order Employees to Work From Home?

Under the Corona-ArbSchV the employer "shall, in the case of office work or comparable activities, offer employees the opportunity to carry out these activities in their home if there are no compelling operational reasons to the contrary".

As before, it can be assumed that, even based on the new regulation, the employer cannot unilaterally enforce working from home against the employees' will. Conversely, the employees' position is strengthened in that the employer is now obliged to generally offer working from home for reasons of occupational health and safety.

2. Is the Employee Entitled to Working From Home?

There is no general entitlement to working from home. However, until March 15, 2021, employers are obliged under the Corona-ArbSchV to offer home office, unless there are compelling operational reasons not to do so. Employees are not obliged to working from home but are called upon to do so if offered by the employer.

The Corona-ArbSchV does not contain a definition of compelling operational reasons. When interpreting the term, employers are grated a reasonable degree of discretion and the type of activity also plays an important role. Naturally, it will be easier for the employer to refuse working from home for blue-collar activities than for white-collar work.

3. What Kind of Sanctions are Provided for in the Event of Violations

Authorities can impose fines on employers under the Occupational Health and Safety Act up to EUR 30,000 per violation.

Also, the employees may refuse to work if the employer does not comply with the health and safety requirements. If a works council exists, it may bring up the issue due to its co-determination rights in occupational health and safety measures.

4. How About Other New Measures to be Implemented?

At least 10 m² per person must be available if several employees are to work in the same room. If the activities to be carried out do not permit this, the employer must ensure an equivalent protection of the employees by other suitable protective measures, such as ventilation measures or suitable partitions between the employees.

In companies with more than ten employees, the employees must be divided into working groups that are as small as possible. Contacts between the individual work groups must be reduced to the minimum necessary for the specific business.

5. When Must Employers Act?

Employers now need to review their setup and decide on the extent of offering working from by Wednesday, January 27, 2021. Workflows should generally be structured in such a way that as few employees as possible can come into close contact with each other. This can be done, for example, by making working hours more flexible or implementing shift systems.

In addition, employers with works councils must now sit down with the works council and reach agreements on working from home and the new working conditions.

Please see our latest blog post on the new draft bill on working from home and feel free to reach out to our Employment Team in Germany or your usual contact at Orrick to find out more or if you need any help.