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Do employees have the right to work from home in a pandemic? A German labour court says not

Written by
Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
12.10.20
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A German labour court has ruled that employees do not have the right to work from home if the organisation has returned to on-site working. This article sets out the details and implications for employers.

During pandemics such as the current COVID-19 pandemic, the health protection of employees should be a top priority. Most organisations sent their employees to work from home as part of the ‘first wave’ in spring 2020. When infection figures dropped in the summer, many returned to in-person work on site. Now rising infection figures indicate the ‘second wave’ has arrived. What happens if an organisation is maintaining on-site work but an employee prefers to work from home? Can an employee request? No, says the Augsburg labour court. This article gives details of what employers should take into account based on this ruling.

Background

For the first time, a labour court has found that there is no general right to work from home, or from a sole occupancy office. The background was a complaint by a 63-year-old employee who shared his office with a colleague. He sought interim relief, bringing a legal action with the aim of being allowed to work from home or at least in an individual office where he would be alone for as long as he is at risk of a sars-CoV-2 infection. He submitted a medical certificate to that effect.

Principle: employer determines the place of work

The Augsburg Labour Court (judgment of 7 May 2020 – 3 Ga 9/20) denied the employee’s claim. In the underlying case, the employee’s claim did not arise either from the contract or from the law.

In principle, the employer determines where the employee’s place of work is by exercising its right to determine the performance at its own discretion. The plaintiff cited s618 of the Civil Code as the legal connecting factor for a claim to work from home, claiming the employer’s general duty of care required that his work be carried out from home. The court took a different view. Section 618 of the Civil Code only governs the ‘whether’ of the duty of care, not the ‘how’. Under s618(1) of the Civil Code, the employer must furnish and maintain rooms, devices or equipment which it is required to procure to allow employees to work and must regulate the way in which the work is done according to its instructions or direction in such a way that the employee is protected against danger to life and health to the extent that the nature of his or her work allows.

According to that provision, the employer is only obliged to take protective measures: it does not govern the protective measures which it takes. The employer has a margin of manoeuvre in implementing protective measures. It is for the employer to decide how to furnish the office space, facilities and equipment so that there is no risk of to health (specifically of infection in the current case). The Labour Court clarified that there are other possibilities besides working from home or providing the employee with an individual office to ensure his health protection. This could be achieved, for example, by adhering to distance rules, ensuring workers wear a face mask or other face covering or regularly disinfecting work equipment.

The employer enjoys a general right to determine the performance of its employee. This extends to the location of the performance. The general right should therefore extend to the employer determining that the employee should work from home.

The judgement did not address, whether the employer’s general duty of consideration towards the employee under s241 (2) of the Civil Code can give rise to a claim to work from home for the employee.

The choice to determine the location lies in the ambit of the employer. In rare, exceptional cases, where no other options are available and the employer has no other choice, the employee can demand to work from home. This demand is a last resort, where the employee is no longer able to perform the work specified by the employer outside of the home. A mere fear of becoming sick on the way to work does not suffice.

Even the fear of catching a disease from a colleague in the company does not constitute an insurmountable obstacle to performance, provided the employer has hygiene rules in place, and thus does not justify a claim.

Outlook and practical tips

It remains to be seen how the Munich Regional Labour Court will judge the case on appeal (a decision is pending there under the case number 5 SaGa 14/20). Until then, employers can assume that there is no obligation to allow employees to work from home as long as the employer observes the requirements of occupational health and safety.

Nevertheless, it is advisable to seek an amicable solution with employees. This can be done, for example, through a company agreement or individual agreement. Many companies have already considerably expanded their regulations for remote working and the response of employees has been predominantly positive.

Finally, the Federal Ministry of Labour and Social Affairs has announced that a general right to work from home will be enshrined in law before the end of this legislative period. A draft law is expected to be ready in autumn.