Mobile or remote working is gradually becoming the ‘new normal’. In this context, many employees may wish to work temporarily from abroad during the COVID-19 pandemic. What sounds simple at first can potentially become a liability issue for employers, especially if employees decide to work from abroad on their own authority.
First of all, it should be considered that there is no right to mobile working from abroad – either in the long or short term. Should employers nevertheless decide to allow an employee to work temporarily from abroad (e.g. because the employee wants to be closer to family or wants to work from a holiday home) the type and scope of this permission should be regulated in more detail in order to exclude possible follow-up risks. The content of the agreement depends largely on the individual case, but the points set out below should be considered.
When determining whether remuneration needs to be taxed in the home country or in the country of employment, the 183-day limit, which also applies to employee secondment, can be used for countries which have concluded a double taxation agreement with Germany (e.g. Spain, Austria, Switzerland). If the activity abroad does not exceed 183 days, the right of taxation for the employee’s country of residence (Germany) generally applies. Within this period, the parties can flexibly handle the scope of work (months, weeks, days).
In the event that the employee has to return to the workplace, this return option should be regulated. On the one hand, the employee should not be obliged to return too soon, but on the other hand, the employer should not be deprived of the possibility of not being able to react to urgent operational situations. Problems with practical implementation can also arise when quarantine is imposed after a return from abroad.
Social security law
As a general rule, employees who are employed in a member state are also subject to the social security legislation of that member state (Germany). If the temporary activity abroad is insignificant (less than 5% of working time), German social security law will usually apply. However, for reasons of legal certainty, it is highly recommended that prior agreement be reached with the German National Association of Health Insurance Funds and that an exemption be obtained. In addition, the possible need for an A1 certificate should be considered. This could be made a condition of the contract, as could residence permits (work permit).
Risk of permanent establishment?
Temporary mobile work from abroad should not pose a risk of constituting a permanent establishment abroad, as due to the exceptional circumstances there is neither a sufficient degree of permanence (maximum of months) nor a de facto authority to dispose. Employers should nevertheless keep this risk in mind due to the lengthening duration of the pandemic and ensure they are informed about the various regulations and views of individual states in order to avoid the risk of double taxation.
The following points should be noted as well:
A careful examination of the various and in some cases very different regulations of the individual states is just as important as monitoring compliance with the aforementioned regulations in order to limit possible risks in relation to temporary mobile working during the COVID-19 pandemic and still fulfil the employees’ wishes to work temporarily from other EU countries.