Home Office during the pandemic: Recommendation or Obligation? Challenges?

Questions and Answers regarding the most widespread word in professional life these days

By minimising social contacts through the adoption of appropriate measures, the authorities are currently trying to slow down the spread of Covid-19. This ultimately also affects professional life: Densely seated open-plan offices and meetings in the physical presence of numerous participants are only two possible situations that run counter to the goal of containing the virus. Even the way to work - on public transport - is a source of danger of spreading. "Home office" is therefore currently is one of the most used terms in professional life.

In many industries, home office has not been widely used so far, in others it is practically impossible. For nearly all employers and employees many questions arise. We try to answer the most important ones in this article.

 

Q: Does an employer have to provide home office facilities for all employees?

A: There is no general obligation to allow employees to use the home office. In principle, however, the employer has a duty of care and health protection to do everything necessary to protect the health of employees. Under certain circumstances, this includes - but is not mandatory - the home office. The circumstances of the individual case must be examined. An employee who insists on working remote from home without the employer's consent may face consequences deriving from employment law (no wage payment, possibly even dismissal without notice).

There is one important exception to this principle: employees must allow particularly vulnerable people to work in the home office. Particularly endangered persons are (1) all persons over 65 years of age and (2) persons who have the following illnesses in particular: high blood pressure, diabetes, cardiovascular diseases, chronic respiratory diseases, cancer, as well as persons who have diseases and undergo therapies that weaken the immune system. If working from home is not available or not made possible for these persons, the employee must nevertheless stay at home and the employer must bear the costs.

 

Q: Can an employer oblige employees to work remote from home?

A: Often the employment contract provides for a place of work. The employer cannot easily change this unilaterally and thus cannot unilaterally order work from home. Due to the special situation, however, employees should generally be obliged to comply with the instruction to work in the home office, if there are no special circumstances against it.

 

Q: What equipment must the employer provide to employees for home office?

A: The general rule applies: the employer must equip the employees with the equipment and materials they need for work. This includes the equipment for the home office, if this is ordered. If, in agreement with the employer, the employees themselves provide equipment or material for the performance of the work, they must be adequately compensated for this.

 

Q: Does the employer have to reimburse the employee for costs incurred in connection with the home office?

A: What generally applies also applies here in the home office: Expenses are to be paid by the employer if they are necessary for the job. The employer must therefore pay the costs that are necessarily incurred by the remote work from home. In principle, costs incurred by voluntary remote work do not have to be paid. In the current situation, however, it is questionable whether home office - which should be ordered and carried out whenever possible - can still be considered voluntary and therefore not necessary.

 

Q: What about liability aspects during the duration of the home office, especially in connection with the use of (personal) electronic aids (IT security)?

A: All usual legal conditions regarding liability and in particular also regarding secrecy obligations and data protection also apply during arranged home office. Employees are obliged to follow the corresponding instructions of the employer. Employers in turn must ensure that compliance with these legal conditions and principles is also possible during remote work from home. In the IT sector, for example, this can be achieved by providing sufficiently protected devices and/or by assuming the costs for special programs on private devices. Instructions can be issued with regard to data protection and confidentiality obligations.

 

Q: Do the labour law regulations (rest periods, ban on night and Sunday work) also apply during home office?

A: Yes, these regulations are also valid for home office periods without restrictions. It has not yet been clarified to what extent simplified permits can be applied for, e.g. for night and Sunday work, due to the current special circumstances.

 

Q: Is there an obligation to record working time during the home office? If so, how is this to be implemented?

A: Yes, the employer's obligation to record working hours also applies during the period of the home office, unless there is an explicit exception to this (e.g. waiver of recording working hours according to Labour Law Ordinance 1, LLO1). The recording of working hours provides information about the working and resting time of the employees. On the one hand, it serves to protect them and, at the same time, enables the employer to check whether the contractually agreed working time is being fulfilled. Against this background, the recording of working hours must also be carried out correctly during home office. Standardized recording of working time in the home office is also not permitted if it does not correspond to the facts.

 

Q: How can I, as an employer, control compliance with working hours during home office?

A: Working time can be recorded by means of electronic time recording systems, for example in the form of an electronic work diary, which enables the employer to keep track of the work performed. Of course, physical recording is also possible (for example, on forms provided for this purpose). The regular transmission to the employer can then take place by e-mail, for example. If controls going beyond the recording of working hours are desired, it is conceivable, for example, to set certain rules with regard to reaction times, which allow a certain degree of control over whether the employee actually is working at home. In any case, the control of the working time may only be carried out using means that do not violate the private and secret sphere of the employee.

 

Further questions about the labour-law peculiarities in times of COVID-19 can be found in the magazine article "Coronavirus - What is to be considered from an employment law perspective?" is answered.

Our team of labour law experts will be happy to advise you on all questions regarding home office and COVID-19 and we look forward to hearing from you.

March 2020 | Authors: Michèle Stutz, Martina Aepli

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