Critical Questions in Times of Increasing Home Office Work During the COVID-19 Pandemic – a German Law Perspective

The COVID-19 coronavirus pandemic is currently forcing employers to rethink their usual working practices and adjust those practices to challenging circumstances. As a result, the number of employees working from home has significantly increased over the past few weeks and will likely continue to increase — but what happens if employees refuse to work remotely? Or if an employee wishes to work from home, but the employer wants to reject this? In addition, due to the fast spread of COVID-19 employers have become more and more concerned about the health and safety of their employees and may need to know, if employees have contracted COVID-19. In consequence, several critical questions have arisen that an employer may have to deal with: 

Does the employer have a right to request the employees to work remotely?

Generally, if neither the employment contract nor applicable collective agreements provide for a home office-clause, the employer cannot unilaterally determine that an employee has to work from home, unless the employee consents to working remotely. In such cases, it is advisable to enter into a respective (written) addendum to the employment contract with the affected employees. However, despite the current circumstances due to COVID-19, some employees may still refuse to sign the addendum and work remotely, but insist to come to the office for various reasons such as, among others, insufficient technical equipment at home or children not permitting them to work effectively. 

In normal times, employers cannot unilaterally send employees to work from home due to their instructional right (Direktionsrecht), as even in non-manufacturing businesses, the circumstances of working from home differ significantly from work activities being performed in the offices of the employer (e. g. employees lose direct contact with colleagues and the opportunity to interact with them is significantly reduced, boundaries between work and free time become fluid¹). 

However, in times of COVID-19, with the economy and society finding themselves in an exceptional situation, governments imposing curfews, people being urged to stay at home to prevent the further spread of the virus, and force majeure clauses in contracts of all kinds are being looked at, good arguments can be raised that an employer may justify its request for use of a temporary home office by its duty of care (Fürsorgepflicht) as part of the employment relationship. The duty of care-concept includes inter alia the employer’s obligation to protect the employee’s life and health to the extent permitted by the nature of its business².  In essence, the employer is generally obliged to take all appropriate measures to protect life, health and personality of its employees when setting up and maintaining its business, in particular when establishing the operational organization and work processes³.  A temporary home office can be one these measures, provided however, general conditions for a home office are given. This includes the following:

• The job position and scope of work has to be generally suitable for home office (e.g. HR management, consultants, IT personnel; for obvious reasons, staff in manufacturing businesses are widely excluded from this opportunity).
• The employer needs to provide necessary equipment and infrastructure (e.g. laptops, access to business email accounts) at its own costs.
• The employer has to advise the employee to implement reasonable technical and organizational measures to protect (personal) data when working remotely.

Should a check of the affected employee’s employment agreement and the individual facts result in the employer not being permitted to instruct the employee to work remotely, or in an uncertainty as to whether the instruction right could be exercised lawfully, the employer may want to consider providing an extraordinary dismissal notice with the option of altered conditions of employment (außerordentliche Änderungskündigung) to the employee. We would expect that a labor court is likely to consider the fact that an employee refuses to work remotely under the current pandemic, disregarding his/her own health and that of others, and despite the employer offering all necessary technical equipment and assistance to enable working from home as best as possible, as an important reason (wichtiger Grund) being able to justify such extraordinary dismissal with the option of altered conditions of employment. 

Can employees request to work from home?

An employer is generally not obliged to grant employees the possibility of working in their home office or even respond to their request to work remotely. Thus, an employee’s request for working remotely can be rejected by the employer without (i) observing any specific form requirements (e.g. by e-mail), (ii) justification, or (iii) considering any deadlines.

However, under specific circumstances (and the current COVID-19 pandemic may well form such specific circumstances) one may argue that employees are entitled to work temporarily from home on an exceptional basis, particularly considering the employer’s duty of care for its employees. When exercising their rights, the employer must always take into account the well-being and legitimate interests of the employees, prevent damage to its employees and respect the employees’ dignity and personality. 

Considering the restrictions of social life ordered by  governments due to COVID-19 with a view to minimize direct contact between people, including curfews and temporary store closures of certain businesses, employers should assess whether or not it is indeed required that their employees perform their work tasks at the employer’s business operations (e.g. employees working in the manufacturing business). If such assessment results in the conclusion that the employees can perform their duties similarly from home as they can in the office / business premises of the employer, the required internal (technical) equipment and infrastructure exists, and the affected employees are trusted, the employer may even be obliged by the duty of care of an employer to permit remote work on a temporary basis to minimize the risks of an infection from COVID-19 for its employees. 

In case the employer rejects an employee’s valid request for home office without material, business-related reasons, and the employee is at risk of being infected with COVID-19 while working in the employer’s premises, the employer may not only face damage claims from the employee arising from the employee’s own infection (e.g. for medical expenses), but one may also argue that the employer’s duty of care further protects the employee’s family members living in the same household with the employee, resulting in further damage claims against the employer if any of the family members of the employee are infected as well and it can be proven that the infection chain resulted from the employer’s premises. 
Further, if the employer orders an employee to work from the employer’s premises in breach of its duty of care obligations, a COVID-19 infection resulting therefrom is likely not to be considered as a work related incident, because the pandemic is a general threat for all people in Germany and globally that exists not only within the specific employer’s operations. Therefore, the employer’s statutory liability insurance may not cover any damages arising for the respective employee as a result of an infection with COVID-19. 

As the Federal Ministry of Labor and Social Affairs (Bundesministerium für Arbeit und Soziales) is currently working on the implementation of provisions with regards to the support and facilitation of working remotely⁴, it is expected that the legal environment for home office work is likely to change and, hopefully, will be improved by more stringent and precise provisions for the benefit of both employers and employees.

Do employers have the right to ask their employees about their health status in connection with COVID-19? What data protection measures have to be taken into account?

Since questions about the health status of an employee are considered an intervention in the employee’s right of informational self-determination, employers may only ask such questions when they have a special justification. In case of ordinary diseases, employers will generally not be permitted to ask the employee questions about their health, unless the disease has a direct impact on the employee’s working activity.

However, if an employee has been diagnosed with an infection of COVID-19, the employer can request information about this in order to fulfill its duty of care towards the respective employee and other employees to protect their health⁵. 

Besides, requesting and the further use of health data constitutes processing of personal data and must be in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679 – GDPR).

Therefore, it is critical for employers to have a lawful basis for this data processing. In addition, as health data is defined as special categories of personal data – which is subject to additional protection – higher requirements apply to the legal justification of its data processing as set forth in Art. 9 GDPR. Taking into account the current outbreak of the COVID-19 and its recognition as a global pandemic by the World Health Organization, the processing of health data may be necessary for the employer’s compliance with legal obligations (e. g. relating to health and safety of the workplace). Therefore, employers will likely be able to rely on Art. 9 (2) (b) GDPR, if they collect and process employee health data for the purposes of occupational safety⁶.  Furthermore, general principles relating to the processing of personal data need to be complied with. These include the principles of data minimization and storage limitation. Thus, the employer needs to limit the processing of health data to the extent necessary and store the health data no longer than is necessary for fulfilling its legal obligations. Thus, the employer should make sure to delete any health data in relation to COVID-19 once the threat has passed. This will presumably be the case, when the employee has fully recovered and the pandemic is over. The employer should also provide the employees concerned with transparent information about the processing of their health data in connection with COVID-19 and issue a respective amended employee privacy notice. 

Additional OnPoints covering COVID-19 Coronavirus considerations under German Law, Dechert's German Corporate team has authored:

• COVID-19 Coronavirus: Impacts on the Performance of Contracts Under German Law (Leistungsstörungen)
  
• COVID-19 Coronavirus (Germany): Protective Shield to Mitigate Impact for Companies and Employees
  

Footnotes

1) LAG Berlin-Brandenburg, decision, dated 14 November 2018 - 17 Sa 562/18 - BeckRS 2018, 34001.
2) Erfurter Kommentar/Preis BGB § 611a Rn. 615.
3) MüKoBGB/Spinner BGB § 611a Rn. 917.
4) Mobiles und dezentrales Arbeiten, bmas.de
5) Arbeits- und arbeitsschutzrechtliche Fragen zum Coronavirus (SARS-CoV-2), bmas.de
6) Statement on the processing of personal data in the context of the COVID-19 outbreak of the European Data Protection Board, dated 19 March 2020