Despite currently very high incidences and increasing vaccination rates, the federal government has decided not to extend the home office requirement regulated in the Infection Protection. This means that there is no longer a legal right to work from home. Employers must respond to this.
Below, we provide an overview of the legal and organizational risks and opportunities associated with the discontinuation of this regulation on March 20, 2022, and what a (partial) return to normality might look like, even if the SARS-CoV-2 Occupational Health and Safety Regulation continues to apply in everyday office life for the time being.
It is important that the course is set now for the coming months and years, because failure to act entails high legal risks.
I. The pandemic as a challenge and an opportunity
For more than two years, the Covid-19-pandemic and the related legal issues have also been the focus of discussion in labour law. The problem was and still is that planning is possible only to a limited extent. On the one hand, because no one could have expected such a situation, but on the other hand, above all, because the legal framework has changed often and very quickly. Now, with the expiry of the remote working requirement, some normality is slowly returning.
Although the final end of the pandemic is still not yet in sight, it is now up to employers to consider how to seact to the discontinuation of the mandatory home office option. In particular, it will be necessary to decide to what extent mobile ways of working should be retained in the company.
Both planning how to organise the return to the office and establishing general standards for working outside the office are of central importance.
The following is an overview of the legal aspects that need to be considered when planning the return to the office.
II. Gradual return to the office
It is to be expected that the transition back to the office will take place in stages. Companies whose employees currently work predominantly from home will certainly not order the entire workforce back at short notice. From the company's point of view, a staggered and gradual return should be considered and in this respect it should be determined who should return to the office and when.
The framework for this is provided by the legal provisions. The employer – of course - cannot give a direction that is prohibited by law; similarily, the employer's liberty is restricted by legal requirements.
a) "Corona legislation"
The duty to work from home, which will end on March 20, 2022, was related to further measures to reduce exposure in the workplace, such as avoiding the gathering of larger groups, which result from the SARS-CoV-2 Occupational Health and Safety Regulation.
However, there is still an obligation for employers to draw up a company hygiene concept and to provide protective masks and covid-tests.
Furthermore, the SARS-CoV-2 Occupational Health and Safety Standards have been in force since the beginning of the pandemic. Although these, in conjunction with the concretising SARS-CoV-2 Occupational Health and Safety Rule, do not provide for any binding obligations, they do contain a large number of rules of conduct for work in the office. A wide range of practical issues are covered, from the exact implementation of the "AHA+L" rule (acronym with the German words for "distance, hygiene, masks and ventilation") to the handling of suspected cases of Covid-19 in the workplace to occupational health precautions and protective instructions for individual sectors.
b) No general right to work from home
However, there will no longer be a permanent legal entitlement for all employees to work from home as of 20 March 2022 in accordance with section 28b (7) Infection Control Act (IfSG).
A different approach would only apply if a binding entitlement was established at another (contractual) level. Especially important is the individual supplementary agreement "remote working/mobile office" to the employment contract, if the latter does not yet contain a corresponding provision. The individual contractual agreement can (and possibly must) be supplemented, replaced or completed by collective agreements (e.g. collective bargaining agreement or agreements with works councils).
If such a provision does not yet exist, but it is intended to allow work from home beyond 19 March 2022, it is highly advisable to agree on such a provision in a timely manner. Otherwise, the employer runs the risk of creating a binding legal entitlement to remote work simply by not objecting to its continuation. The unopposed granting of remote work would then be considered an offer which the employee accepts by working from home.
Even if the opposite could result from the home office option in the SARS-CoV-2 occupational health and safety regulation, this risk should not be taken, especially since this also ends in two months according to current planning.
III. Requirements and regulation of the (partial) return to the office
In principle, the same applies to the termination of mobile working - a possible (binding) agreement can only be cancelled by concluding another agreement. If, on the other hand, there is no such agreement giving rise to a claim, the employer should, as explained above, make such an agreement immediately or require the employees to return to the office within the limits described below.
Essentially, there are three scenarios for action or planning after the expiry of the remote working requirement:
a) Return to the office by unilateral instruction
In case the employer has a unilateral revocation option (provided for in the employment contract or other provisions), the agreed grounds for revocation must first be observed. A well-drafted agreement allows the employer to keep open the option of allowing the entire workforce or only individual groups of employees to return to the office. Here, the individual provisions must be examined carefully on a case-by-case basis. Nevertheless, the employer must never decide arbitrarily in such a case - the decision must always be based on the principles of equitable discretion.
If there is no agreement whatsoever, only the employer's right to issue instructions in connection with the provisions of the employment contract apply. In exercising his right to issue instructions, the employer unilaterally determines the place of work (provided for in the employment contract), taking due account of the interests of the employee.
However, the interests of the employee should be taken into account in any case by issuing the instruction to return with a notice period (e.g. two weeks) so that it is possible for the employee to adjust to the new situation - which corresponds to the contractual obligations - if remote work has been has been carried out exclusively over a very long period of time.
A refusal by the employee to return to the office would be inadmissible in the case of a justified instruction and could – in the most cases - ultimately result in an immediate dismissal.
If the employee has a binding right to work from home, but no right of revocation for this is laid down in the mobile working agreement and a mutually agreed solution by means of an amendment agreement/cancellation of the supplementary agreement fails, the employer is left with the option of termination/dismissal with an option of altered conditions as a last option to prevent a contractual claim to work from home. The relevance of this category, however, seems to be extremely low, as it would require a reason for termination, which hardly seems conceivable if remote work was possible without disruption over a long period of time.
b) Maintaining remote work?
In addition to the organisational challenge, a permanent continuation of widespread remote poses risks in any case if it is maintained well after the right to work remotely expires at the end of March 2022 without a corresponding legal basis.
This would give rise to a legitimate expectation in the continued existence of the (unwritten) agreement and, as a result, according to the principles of "company practice" under German law, a binding entitlement to work from home which can no longer be unilaterally eliminated by instructions.
This is relevant in cases where mobile working was not agreed in writing, but the employer clearly wanted to enable it exclusively in the course of the pandemic.
However, if the employer continues to offer remote work without regulation in an agreement or in contradiction to existing regulations when the pandemic subsides and the legal framework changes, it is likely that employees' reliance on the permanent continuation will be worthy of protection. In these exceptional cases, a claim of the employee would arise in the future from "company practice".
In this respect, for reasons of legal certainty, it is advisable to find a binding mutually agreed arrangement and otherwise insist that the work be performed at the agreed location.
c) Opportunity to define a binding overall concept for hybrid working and gradual return to office
With regard to the above, it becomes evident that the clearer and more unambiguous the agreed provisions on which these arrangements are based, the more successful the arrangement of a (partial) return to the office or even a partial continuation of mobile work will be, because this ultimately specifies the scope that the employer has to observe when making decisions.
For this reason, it is urgently recommended - quite independently of the pandemic situation - in the interest of all involved to conclude appropriate agreements on mobile working in order to have clear regulations that are comprehensible to all. With the expiry of the "home-office" rule, the occasion for this is even greater, with a variety of possible arrangements coming into consideration.
IV. Co-determination rights of the works council
The restoration of office life regularly represents a significant change of operational processes. In this respect, proper works council participation is of central importance not only in the introduction of mobile working methods, but also in the return to normality, provided there is a works council.
In this respect, the co-determination rights are a reflection of the scope of co-determination in the introduction of remote work. The focus is on the newly introduced right of co-determination for the organisation of remote work (section 87 no. 14 German Works Constitution Act - BetrVG). Depending on the extent to which the change to office operation changes procedures, the co-determination rights under section 87 nos. 1 (organisation of the workplace), 2 (working time), 6 (technical equipment) and 7 (occupational health and safety) BetrVG may also have to be taken into account.
With regard to the question of whether the instruction to return to the office is an employee transfer subject to co-determination (section 99 German Works Constitution Act - BetrVG), a distinction must be made - as with the introduction. If, after the employer's instruction, there is no longer any possibility to work outside the office, it is a matter of a binding determination of the place of work, so that a right of co-determination of the works council according to section 99 German Works Constitution Act - BetrVG arises. In practice, however, the works council will rarely be able to refuse consent. If the employee is still to have the option of working from home (hybrid working), this is not a transfer if the employee still has a discretion.
Even if the instruction to work from home was given unilaterally and without co-determination of the works council due to pandemic-related urgency, this does not mean that the order to return can also be given without co-determination.
V. Conclusion and outlook
The slow return to normality after the Covid-19-pandemic poses no impossible difficulties for the practice of labour law. Nevertheless, this step must be well prepared and planned.
However, it is important for all companies to act now: Be it by reviewing the existing arrangements, be it by creating new arrangements and thus manifesting the status quo (or the future status quo), or be it by instructing the workforce - in accordance with the employment contract obligation - to return to work in the office. The only fatal thing would be not to act now and wait for further developments, because this could lead to the creation of binding employee entitlements that could no longer be unilaterally removed.
We hope to give you a good overview of the current developments with these explanations. If you have any questions on the above-mentioned topics and on concrete effects and questions of organisation, please do not hesitate to contact me or my colleagues in our offices in Berlin, Düsseldorf, Munich and Cologne by telephone or e-mail.