Germany: Employees now obliged to work from home

On 21 April 2021, the German Bundestag passed the draft of the "Fourth Law for the Protection of the Population in the Event of an Epidemic Situation of National Significance". The German Bundesrat passed the bill after deliberation on 22 April 2021. Entry into force is expected no later than Monday, 26 April 2021, following signature by the Federal President and subsequent publication.

Part of this draft is a new section 28b (7), which will be inserted into the Infection Protection Act ("IfSG") and will read as follows:

"In the case of office work or comparable activities, the employer shall offer the employees the opportunity to carry out these activities in their homes if there are no compelling operational reasons to the contrary. The employees shall accept this offer insofar as there are no reasons to the contrary on their part. (...)"

The first sentence of the new section 28b (7) IfSG is already known from the SARS-CoV-2- Occupational Health and Safety Ordinance (SARS-CoV-2-Arbeitsschutzverordnung). What is new, however, is sentence 2 of paragraph 7, which contains the obligation of employees to accept this offer (insofar as there are no reasons to the contrary on their part).

With this wording, not only employers but also employees are now forced to consider the possibility of working from home. Whereas employees were previously only asked to make use of their employer's offer, there is now an obligation on employees to work from home, provided there are no reasons to the contrary.

According to the explanatory memorandum to the law, conflicting reasons can include cramped quarters, interference from third parties or inadequate technical equipment. The explanatory memorandum to the law also includes the information that a mere notification by the employee to the employer that working from home is not possible is sufficient. Employees do not have to declare this on their own initiative, but only after being requested to do so by the employer.

It is true that the processes that will apply as a result of the extension of the home office obligation have not yet been established. However, it can be assumed that the existing employer obligations will not be significantly expanded:

Employers will still be required to offer working from home or to demonstrate what operational reasons exist for not doing so. In addition to documenting their offer to employees, employers should now also record the employee's notification that working from home is not possible. According to the explanatory memorandum, however, employers should not be required to provide any additional documentation. In addition to the wording of the explanatory memorandum, this suggests that employers do not have to review or evaluate a refusal to work from home and certainly do not have to discuss the reasoning for the refusal with the employee. A substantive discussion already fails due to the fact that, according to the explanatory memorandum, employees are not required to give reasons for refusing to work from home.

For employees, this means that they are not threatened with unpaid leave if they refuse to work from home because of conflicting reasons and the employer in turn refuses to allow them to enter the company. This is also supported by the inviolability of the home, which is protected by constitutional law and precludes a review of the employee's information on the home situation, which would make working from home impossible.

In a press release dated 21 April 2021, the German Federal Ministry of Labour announced that the regulations on working from home now enacted in the Infection Protection Act will be deleted from the Occupational Health and Safety Ordinance. As previously in the Occupational Health and Safety Ordinance, the working from home obligation in the Infection Protection Act is limited in time to the duration of the epidemic situation, at the longest until 30 June 2021.

The amendment to the Infection Protection Act has no effect on the principles of cost bearing for the workplace at home or occupational health and safety when working from home.