Germany: Occupational health and safety when working from home

The Corona pandemic has made "working from home" popular in Germany. Working from home was intended to be a temporary solution during the first lockdown in spring 2020 and is now becoming a permanent one. This should be a reason for employers to pay attention to occupational health and safety regulations.

Obligations generally arise from the Occupational Health and Safety Act, which states principles that the employer must observe and provides for an obligation to instruct employees on occupational health and safety. The Act does not state which specific measures are required; these are to be determined on the basis of a risk assessment.

Requirements of the Workplace Ordinance

The Occupational Health and Safety Act is substantiated by the Workplace Ordinance, which specifies the requirements for a risk assessment and for informing employees. In the annex, it also contains concrete measures for the design of computer workstations.

The Workplace Ordinance applies, amongst others, to permanently installed computer workstations in the private area of the employee. According to the intention of the legislator, the Ordinance is not applicable in case of only occasional work from home. At the beginning of the pandemic, when employees moved to the home office for a supposedly short period of time, employers could therefore ignore the requirements of the Workplace Ordinance and rely entirely on pragmatic solutions.

According to the wording of the Ordinance, it is further required that the employer and the employee have contractually agreed on the conditions of telework and that the required equipment for the computer workstation has been provided and installed by the employer. Creative employers might get the idea to circumvent the Ordinance by leaving the furnishing and equipping of the home workplace to the employee and claiming that there is no workplace installed by the employer.

However, an interpretation of the Ordinance based on its purpose as well as an interpretation of the term "computer workstation" used in the Ordinance in line with European law argue against this. In addition, the provisions of the Workplace Ordinance specify the employer's obligations resulting from the Occupational Health and Safety Act and can therefore not be ignored by employers.

With the ongoing pandemic and continued work from home, employers should therefore pay attention to the specific requirements of the Workplace Ordinance for the design of computer workstations.

Carrying out the risk assessment

Central elements of occupational health and safety are the risk assessment of the workplace and the subsequent instruction of the employee on the design of the workplace. In principle, this requires an inspection of the workplace at home by the employer within the framework of a contractually agreed right of access. Such a right of access is not very realistic and is counterproductive in times of pandemic.

Risk assessment via app in the future?

This is where a proposal by the CDU-CSU parliamentary group comes in, which would like to enable the employer to carry out the risk analysis in future by means of an app. This app will record the workplace and check whether it is set up in a way that accidents are prevented and stress is reduced and that the workplace meets ergonomic requirements, thus replacing the assessment of the workplace by the employer. In addition, the app shall include behavioural recommendations for the prevention of accidents at work, ergonomic working and for staying healthy.

For the time being: checklist advisable

For the time being, employers should comply with health and safety regulations according to the principle: "The less control, the more information". In practice, it has proven helpful that employers ask their employees about essential points that are important for healthy working on the basis of a checklist and that they inform their employees comprehensively about the ideal design of the computer workstation. This includes, for example, the positioning of the monitor and the correct sitting position.

Equipment of the workplace

In practice, employers mostly provide their employees with modern business laptops and additional devices such as keyboard, monitor and mouse. Irrespective of complying with health and safety regulations, this is advisable for reasons of data protection and the protection of business secrets.  

In contrast, less attention is paid to ergonomic work. Especially if employees are not equipped to work from home, a proper desk chair and desk are often not available. It is then the employer's responsibility to find solutions when allowing employees to work from home during the pandemic.   

Another question is who bears the costs of equipping the home office. This is the subject of Eva Heinrichs' article on bearing the costs of a home office.