Legal FAQ: Mobile working

Legal FAQ: Mobile working

Working at home has become commonplace due to Corona. But is there a right to it? Can you also work from abroad? Does it make a difference whether you “work mobile” or whether you are in the “home office”? We give an overview of the legal bases.

From a legal point of view, what is the difference between home office and mobile work?

Neither of these two terms is legally defined. In practice, most companies speak of “mobile working” when employees work somewhere outside the office. That can also be at home, i.e. in the home office.

Many companies avoid the term home office because it can easily be confused with “telework”, a form of work with strict legal requirements: If a company agrees to telework with an employee, it must finance the necessary furniture and technical equipment according to the workplace ordinance and “in the private sector of the employee “.

Is there actually a legal right to work from home or mobile?

In Germany, Austria and Switzerland, employees have no such legal entitlement, apart from temporary rules during the Corona period. According to the German trade regulations, the employer may “determine the content, place and time of work at its own discretion”, unless something specific is agreed in employment or collective bargaining agreements or company agreements. Due to the corona pandemic, the federal government had only temporarily obliged employers to offer their employees to work “in their homes”. This rule expired at the end of June 2021.

The subject will probably be discussed again in the coalition negotiations after the federal election. However, it is unlikely that this will result in a legal claim. In 2020, the Union rejected a proposal from Labor Minister Hubertus Heil (SPD) to create a right to at least 24 days a year. Now Heil only demands that employers discuss the desire for mobile work with their employees and justify a rejection in writing.

But regardless of the lack of legal entitlement: In practice, more and more companies still allow mobile working.

My employer allows “mobile working”. Does that mean I can now work anywhere I want?

In many companies, company agreements regulate the details of mobile working individually, in some there are also statements about possible workplaces. If the employer allows mobile work without specifying such details, employees are generally free to choose according to the prevailing legal opinion, but must observe conditions: “When choosing the place of work, you have to ensure that you are able to work and that you can be reached,” says Martina Hidalgo, Head of Labor Law the law firm CMS, in conversation with c’t. In addition, one must observe other obligations such as maintaining confidentiality or data protection. “In public places such as cafés, you can hardly rule out the possibility that strangers overhear phone calls or see screen contents.”

The German Trade Union Confederation (DGB) sees the legal situation in a similar way: the circumstances on site must “enable proper service provision,” explained a spokeswoman on request. “Under this condition, however, it is none of the employer’s business whether employees set up their home office in their city apartment or in a holiday home in the surrounding area.”

The distance to the office can also play a role in practice, because companies often only allow mobile working for individual days after consultation. If an appointment is spontaneously arranged in the office for the next day, the excuse that you are currently staying in a holiday apartment in the Allgäu does not count. “As a rule, the employer retains the right to direct, even if he allows a certain degree of flexibility,” explains Hidalgo.

Can I also work on the move from my holiday home on Mallorca?

Even if the beach is tempting: employees are only allowed to work abroad if the employer explicitly agrees on a case-by-case basis. Because working from abroad has complex social security and tax law consequences – not only for the employee, but also for the employer.

At TUI, the mix of vacation and home office is called “work”. However, if you want to work from abroad, you need the green light from your employer.

(Image: tui.com)

Can I deduct the costs for laptops, monitors, etc. from tax?

In winter, new tax rules for home office came into force, but they do not apply to work on the go: For every day that you work “at home”, you can claim 5 euros on your tax return. The amount is limited to 600 euros per year, and the tax office includes it in the general employee lump sum of 1000 euros. So you only benefit if you have more than 400 euros in other advertising costs. The rule initially applies for a limited period to the 2020 and 2021 tax returns. Work equipment such as notebooks, headsets, webcams or desks can also be deducted as advertising costs, whereby you have to estimate the percentage of these things you use for work. In principle, computers, peripherals and software have been sold in one fell swoop since 2021. It is more complicated with other work equipment: If the purchase price exceeds 952 euros, you have to write off over several years.

Who pays in the event of an accident?

Statutory accident insurance takes over for all accidents in the office. It is more complicated in the home office and on the go: The insurance only covers accidents in activities that serve business interests, such as the way to the printer. If, on the other hand, you fall on the way to the coffee machine in the kitchen, the accident insurance is not responsible according to a judgment of the Federal Social Court. The way between kindergarten and home office is also not insured – unlike the detour to kindergarten on the way to the office. Labor Minister Hubertus Heil has presented a draft law to eliminate this inequality. However, due to the federal elections, this law will probably not be discussed in the Bundestag until next year.

In c’t 17/2021 we provide lots of suggestions and tips for the mobile office. We bring older devices a second spring with the Raspberry Pi, exposed senders of phishing emails and tested the brand new AMD Ryzen 5700G. In addition, we shed light on (re) climate-friendly cryptocurrency, test USB storage devices with write protection and present six technical concepts for quantum computers. You will find issue 17/2021 from July 30th in Heise shop and at the well-stocked newspaper kiosk.

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