Germany: Who bears the costs for the workplace at home?

Under the current legal status, employees have no entitlement to request working from home. Nor is it to be expected that such an entitlement will be introduced. Although there was a proposal to this effect in the draft bill of the Federal Ministry of Labour and Social Affairs last year, it was rejected almost entirely. The draft now available from the Federal Ministry merely includes an obligation on the part of the employer to discuss the matter.

The Corona Occupational Health and Safety Ordinance, which came into force on 27 January 2021, also does not provide for an entitlement to working from home, but only for an obligation to provide reasons in the event that the employer refuses this.

If the employer and the employee agree that the employee will work from home, the question of bearing the costs arises:

Cost bearing for working from home

In principle, employers have a duty to provide employees with the necessary work equipment and to bear the costs for this. This obligation relates to the equipment of the employee's place of work, regardless of whether it is in the home or the company.

If the employee's place of work is exclusively at home, this must therefore be equipped. While the provision of IT equipment is generally less likely to lead to disputes, the provision of other equipment holds more potential for discussion. Employers are rarely willing to pay for a desk, desk chair and much more. But that is precisely the consequence when the employee's work location is the home alone. Employers are not supposed to be financially relieved by shifting the work location away from the company. At the same time, employees should not be subject to additional financial burdens.

The question of the extent to which costs are borne frequently arises. For example, the employee can claim that if the possibility of using premises within the apartment or house is significantly restricted, the reimbursement of expenses also relates to a share of the rent. Likewise, increased ongoing costs such as electricity and heating costs are eligible for compensation. The difficulty for the employee is that they must prove that the costs were incurred specifically for work and would not otherwise have been incurred. This is denied in the case of internet and telephone costs, and is at least difficult to prove in the case of electricity and heating costs.

Different assessment if office workstation is available

The above principle of bearing costs is restricted by the fact that the allocation of costs must correspond to the interests of the parties. This means that the party who has the predominant interest in working at a particular location must also bear the costs. There is a presumption that the employee has a predominant interest in working from home, for example, if the workplace is only moved there at the employee's request. Whenever the employer offers a workplace in the company, it can be assumed that the employee has the overriding interest. If this were not the case, the employer would be unduly burdened and would have to provide two workplaces.

Distinction in Corona times is difficult

Distinction difficulties often arise with regard to the predominant interest. Especially during Corona times, workplaces at home are in the interest of both parties. As a result, however, the employee is likely to lose out when it comes to bearing the costs if the employer continues to provide an office workstation. The reason for this is that it is then the employee themselves who decides whether they want to work from home or prefer to come into the office. The Corona Occupational Health and Safety Ordinance does not change this, as it only requires the employer to offer the employee to work from home, but does not stipulate an obligation for the employee to do so. The situation is different if the employer closes the office altogether or divides employees into groups and allows work in the office according to a rolling system only, for example, only every other week. The controlling consideration is always whether the employee may or must work from home. Only in the latter case does the employer's obligation to bear the costs apply.

The potential for dispute is lowest if a provision is made for bearing costs. This can be done contractually - eg as part of a working from home agreement - or through a company agreement. If the employer is obliged to bear the costs, a lump sum can be agreed. It is also possible to contractually agree that the costs incurred are to be offset by the employee's salary. It should be noted that any offsetting can only be considered if the expenses represent a small proportion of the remuneration, the expenses are specified in sufficient detail and the amount of the offsetting is clearly stated in the provision. A clarifying regulation is also recommended in cases where the employee works from home at their own request and the employer is therefore not obliged to bear the costs. In practice, many employers are nonetheless accommodating and contribute to the costs with lump-sum payments.

It is widely known that real mobile working places fewer demands on employers, at least in terms of occupational safety. The consequence of this, at least in theory, would be that employees who are allowed to work on the move without a fixed workstation would also not be entitled to have the costs of equipping a workstation covered. In the current pandemic, however, this solution is not very credible: From which place, if not the home workplace, can employees currently work? Accordingly, this is also not currently a solution with which employers can avoid having to bear the costs.

A related topic is compliance with occupational health and safety standards in the home office. In his article Alexander Greth takes a closer look at relevant regulations and their applicability in the home office.