Corona virus: who has the right to a home office?

Corona virus: who has the right to a home office?

Here and in our newsletter we regularly answer a question from our readers about the corona virus.

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A reader who wants to remain anonymous because the topic is controversial in his company writes: “Can the employer instruct the employee to work in the office together with other colleagues even though the prerequisites for home office are in place? at my employer, a company with more than 10,000 employees. The reason: There are too many in the home office who dialed in via the same access. This would affect the performance of the system. “

The answer from Helene Endres, editor in the job and career department at SPIEGEL:

First of all, the basic message: There is no right to a home office because of fear of infection, even in Corona times, especially if the employer provides sufficient secure jobs. This includes, for example, that a sufficient safety distance is guaranteed and appropriate hygiene requirements are observed. So if there is not already a home office agreement, it will now be difficult to enforce working from home.

On the other hand, if there is an agreement, it depends on whether it – as is usual in practice – provides for the right to return. These would apply if, for example, the technical requirements were not met. And there are also explicit return rights, according to which the employer can order the employees to the permanent establishment. Such clauses are subject to strict effectiveness requirements, but if they are well-knit, you must continue to appear in the company.

If the existing home office agreement does not provide such reservations, it becomes tricky. Here we asked Daniel Klösel, a lawyer specializing in labor law and compliance and partner of the law firm Justem Rechtsanwälte in Frankfurt / Main. He says: “A possible way for employers could be the general duty to avoid damage if the technical requirements for regular operation from the home office are not given as a result of overload. Here, the way through the case law is not yet paved, but there is a lot to be said for one such a duty, at least if the employer cannot provide reasonable technical retrofitting in this exceptional situation and – of course with appropriate company health protection concepts – also ensures safe jobs in the company. “

So prefer to appear at work. Ultimately, it should be noted that employees take a high risk in the event of a refusal. Then there will be sanctions under labor law ranging from warnings to termination without notice. The question of whether there was a right to a home office in the specific case would then be clarified in the dismissal protection process. And here it depends on the individual case and the circumstances mentioned. In any case, the outcome is uncertain.

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