COVID-19: The current home office regulations

Dec 8, 2021 Benn-Ibler Rechtsanwälte

As the pandemic continues to dominate our everyday (work) life, home office is an important part of many employees' and employers' lives. Therefore, it is important to get an overview of the labour law provisions of the current home office framework.

Working in a home office is mainly regulated by the Labour Contract Law Amendment Act (Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG). Other labour laws, such as the Employee Liability Act (Dienstnehmerhaftpflichtgesetz, DHG) and the respective company agreements and collective agreements also apply.

Since Section 2h para 1 AVRAG assumes a regularity of work in the home office, the new regulations of the home office framework do not apply in the case of home office under special circumstances or irregularities. Home office must be agreed in writing between the employer and the employee (Sec. 2h para 2 AVRAG). When terminating such an agreement, the time limit under Sec. 2h para 4 AVRAG must be observed.

Employers must provide the necessary digital work utensils that a person needs at home (Sec. 2h para 3 AVRAG). These must be state of the art. If the use of own (private) resources is agreed upon, employers are obliged to pay a flat rate. Since private residences of employees are considered to be external workplaces, protective regulations not related to the workplace also apply (Sec. 2 para 3 last sentence of the Employee Protection Act – ArbeitnehmerInnenschutzgesetz. ASchG).

Employees are liable under Sec. 2 DHG for damage caused to work equipment provided by the employer. Under the new law, this also applies if a member of the household causes this damage (Sec. 2 para 4 DHG).

As far as accident insurance for working in a home office is concerned, it now also covers accidents at work in connection with working from home (Sec. 175 para 1 General Social Insurance Act - ASVG). This also applies in particular to accidents on the way to or from the childcare centre or on the way to cover essential needs.

With regard to working hours, the previous working time schedule continues to apply in principle. Daily records of working hours must continue to be kept. Workers' private residences may only be entered by labour inspection bodies with their express consent (Sec. 4 para 10 Labour Inspection Act – Arbeitspektionsgesetz, ArbIG).

Finally, a possible works council can provide for facilitations with regard to work in the home office by concluding a works agreement pursuant to Sec. 97 para 1 no 27 of the Labour Constitution Act (Arbeitsverfassungsgesetz - ArbVG).

AVRAG, DHG, ASchG, ASVG, ArbIG, ArbVG

Status: December 8, 2021