From the beginning of July, the employer can require his employees to return to the office. If you don’t, you’re threatened with dismissal. […]
At the beginning of the third wave, legislators introduced home office mandatory for companies. These had to let office workers, whose presence in the company was not mandatory for operational reasons, work from home. This was accompanied by an obligation for employees to comply with this request. This special infection protection regulation now expires on 30 June 2021. What will apply to employees and companies from 1 July 2021? Michael Fuhlrott, the specialist lawyer for employment law and professor at the Fresenius University in Hamburg, explains the legal situation for companies and employees.
Since 23 April 2021, the right to and obligation to work from home have been regulated in Section 28 b (7) of the Infection Protection Act (IFSG). According to this, since then: “In the case of office work or similar activities, the employer has to offer the employees to carry out these activities in their homes, if there are no compelling operational reasons to the contrary. The employees have to accept this offer, as far as there are no reasons to the contrary.“
This legal provision replaced a previously applicable similar provision in the Corona Occupational Safety and Health Ordinance, which obliged employers since 27 January 2021 to actually let their office employees work from home.
“This right to the home office, which was initially limited, will now end at the end of June 2021,” says employment lawyer Michael Fuhlrott. “Since there is no general legal entitlement to a home office, employees must resume their activities on-site in the company from 1 July 2021 if the employer wants it,” says Fuhlrott. “If an employee resists such an invitation because he has become accustomed to his work from home, he must expect labor law consequences up to warning and dismissal,” said the labor lawyer.
Only exceptionally may an employee continue to insist on working from home. This is the case, for example, if there is a company regulation that allows employees to work in the home office. “There are increasingly such company regulations in larger companies,” the employment law professor knows. Certainly, the corona pandemic will also leave a mark in this respect in labor law and corporate reality, especially since many companies have noticed that an activity from the home office can even increase productivity for certain activities or to a delimitable extent and is desired by employees. Nevertheless:” A legal claim does not insist on this, ” warns the employment lawyer with regard to the consequences of refusing to take up work on site.
A right to work in the home office will not result from the fact that the employee has been working from home for the last few months, Fuhlrott believes. “By granting an activity from their own home in recent months, the employer has ultimately only followed an infection protection law requirement of the legislature,” says Fuhlrott.
If the legal order for the home office now comes out of force, the former state occurs again, which in most cases will be an action from the company workplace. An employee will also not be able to rely on a so-called company exercise, says Fuhlrott, because: “A prerequisite of a company exercise is the granting of a benefit by the employer. But this is lacking if he only obeys a legal commandment.“
However, caution should be exercised if companies let their employees work from home beyond June. “In such a case, employment in the home office no longer takes place due to legal requirements,” comments Fuhlrott. An employer who continues to let employees work from home should make it clear to them as a precaution that this does not establish a permanent claim to work from home. “Otherwise, an employee could possibly claim that the employment contract between the parties to the employment contract has been tacitly amended and that the employee now has a permanent right to a home office,” the employment lawyer continued.
Fuhlrott recommends that employers and employees obtain legal advice on questions relating to the implementation of the measures described in the company, whereby he also refers to the Verband deutscher ArbeitsrechtsAnwälte e.V. (VDAA).
* Hans Königes is Head of Jobs & amp; Career and thus responsible for all topics relating to the labor market, jobs, professions, salaries, personnel management, recruiting, and social media in professional life.