Will mobile work become a legal entitlement for employees in Germany?

New German 'Mobile Work Act'?

The German Federal Minister of Labour launched a legislative initiative for a legal regulation on mobile work on October 5, 2020. His draft of a Mobile Work Act (Mobile-Arbeit-Gesetz) is intended to provide for a legal entitlement for employees to at least 24 days per year of mobile work. However, in a first reaction the Federal Chancellery has not approved of the labour minister`s plans. It remains to be seen whether the governing parties will reach an agreement and whether this draft law (or any amended version) will be submitted into the parliamentary process soon. 

1.  What is mobile work?

The Ministry of Labour characterizes mobile work by the fact that employees perform their work from a location outside of the actual business premises. Mobile work can either be performed at a location chosen by the employee or at a location agreed upon with the employer (e.g. home office). The Minister of Labour also intends to distinguish between occasional and regular mobile work. The draft law refers to regular mobile work, i.e. scheduled recurring mobile work, for example once or several times a week, or twice a month on a certain day of the week.

2.  Status quo

In Germany, there is currently no specific regulation on working from home or mobile work. An employer is generally not obliged to agree to an employee's request for mobile work. Rather mobile work requires an agreement with the individual employee or the works council.

The Ministry of Labour intends to create an entitlement to mobile work. Against the background of experiences regarding mobile work during the Corona Pandemic and the comparison with other countries, mobile work shall be promoted and protected against mixing work and private life. A study of the Federal Ministry of Labour and Social Affairs on the 'Spread and Impact of Mobile Work' can be found here. 

3.  The draft Mobile Work Act

The Mobile Work Act is expected to provide for the following key points:

• Entitlement for employees to mobile work, at least 24 days per year.

• Refusal by the employer only for compelling business or operational reasons.

• If both parents have a job where mobile working is feasible, parents can take turns working from home one day a week.

• The draft contains an obligation for employers to digital time recording. Employers who do not monitor the working and resting times of employees working mobile by 'digital time clock' may be fined up to 30,000 euros.

• Furthermore work accident insurance cover shall be extended to home office work. For example, if a mobile working employee suffers an accident at home, he/she would be treated as if the accident happened  in a general business establishment. Currently, an employee working in his/her home office would not be covered by the statutory accident insurance, if he/she injures him/herself while getting a glass of water from the kitchen. The insurance cover shall also apply to employees who bring their children to or from the day-care centre during mobile work.

4. Open Issues

However it is not yet clear if the draft law will cover the following issues:

• Implementation of the obligation imposed by the ECJ in its ruling of 14. May 2019 (C-55/18)  on employers to record all working hours by an 'objective, reliable and accessible system' regarding all employees, not only those working from home.

• Any minimum size of employer business operation (e.g. number of employees) and/or employment period (e.g. 6 months probationary periods) as a perquisite for any home office entitlement.

• Regulations on coverage of any costs of the home office.