Coronavirus disease (SARS-CoV-2) as a reason for home office?

Katharina KrimmCarolin Linusson-Brandt

Due to current global developments and the occurrence of the first infections with the SARS-CoV-2 virus (Coronavirus) in Germany, more and more employers think about their possibilities in the event of temporary closure of business premises.

While it is often almost impossible for the manufacturing industry to produce when the employees are not in the factory, employees of many other companies are at least able to maintain operations by working temporarily from home. However, the necessary employment contract regulations are often missing.

Unless an agreement on home office work has already been concluded with the individual employee, it cannot be ordered unilaterally by the employer. The reason for this is the fact that an employee whose contract of employment grants a workplace at the employer's business premises is obliged to work only as agreed - in the company. In addition, Article 13 Basic Law of the Federal Republic of Germany protects the inviolability of the home under constitutional law, so that employees do not have to accept any encroachments on their home. A unilateral order to work from home by the employer therefore exceeds the right of direction under § 106 Trade Regulation Code. As a result, employees are entitled to refuse to perform work from home and still be able to claim their wages.

This entitlement to continued payment of wages exists even if the authorities order a shutdown due to the Coronavirus in individual cases. The Federal Ministry of Labour recently announced: "If the employer is unable to employ the employees due to an official order to protect against infection with the coronavirus, the employees will be released from the obligation to perform work. It is impossible for them to perform their work. [...] The lost working hours do not have to be reworked. With regard to continued payment of remuneration, the employer remains obliged to pay remuneration if the employees are capable and ready to work, but the employer cannot employ them for reasons that lie within the sphere of his business.”

As a result of the lack of unilateral authority to issue orders, a request to perform work from home is only possible if both parties agree to such action. This can be done, for example, with voluntary, fixed-term, written agreements with the employees. It is advisable to also regulate necessary aspects such as accident insurance, data protection and the employer's rights of access to the employee's premises. Companies with a works council have to comply with the co-determination rights of the works council, so that corresponding works agreements would have to be concluded.


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