No entitlement to work from home or a private office

A certificate does not help either: Even in times of Corona, employees can neither claim to perform their work from home, nor request an office for themselves 

ArbG Augsburg, judgement of 7 May 2020, 3 Ga 9/20

A medical certificate presented by the employee, according to which the employee is classified as a so-called "risk patient", does not constitute a (legal) obligation of the employer to provide the employee with a private office or to allow him to work from home. Employers have discretionary powers with regard to the way in which corona protection and a related medical recommendation is provided.  

FACTS OF THE CASE

The parties argue about the claim asserted by the employee regarding the permission to work from home or, alternatively, the claim asserted by the employee regarding the allocation of a private office at the seat of his employer. 

The 63-year-old employee is employed by his employer as a legal expert and shares his office with his assistant. After presenting a medical certificate to his employer, he requested that, as long as he was at risk of infection with Sars-CoV-2, he shall be allowed to work from home or, if this was not possible for organizational reasons, that the employer shall provide him with a private office. 

The employer rejected the employee's request. From his point of view, the employee has neither the right to work from home nor to be granted a private office.

DECISION 

The employee's complaint was not successful. 

The Labor Court of Augsburg holds that there is no (legal) entitlement of the employee to a workplace at his place of residence (home office) or to the allocation of a private office at the employer's seat. Such a claim could only arise from a contractual agreement. However, in the present case such an agreement does not exist. 

According to Section 618 of the German Civil Code (BGB) the employer is obliged to implement necessary protective measures in favour of the employee. However, it is, solely up to the employer how he implements and complies with his obligations under Section 618 BGB in a discretionary manner by correspondingly exercising his right to determine benefits in order to comply with the recommendations of the employee's GP. Provided that the employer took appropriate protective measures, he therefore may also fulfil this obligation by employing the employee in an office with several persons. 

PRACTICE TIP

Even after presenting a medical certificate, employees cannot request from their employers - without the existence of a contractual agreement - to perform their work from home. 

However, employers must take appropriate protective measures, especially after a medical certificate has been presented, which can prevent or reduce the risk of infection for so-called "risk patients". If employees work in an office with several people, this can be done, for example, by setting up (transparent) "protective shields", observing the rules of distance and hygiene, and a regulation of ventilation by the employer (permanently tilted windows). 

Employees can therefore neither demand "absolute protection" nor a specific or "best possible" measure from their employers. In accordance with this principle, various courts have already ruled in the past, also in other cases - such as with regard to the lack of an employee's right to a "smoke-free workplace" (VG Freiburg 18 May 1978, VS. V 117/77; LAG Hessen June 13, 1994, 10 Sa 1019/93; BAG May 10, 2016, 9 AZR 347/1).

On the other hand, even if this is not contractually agreed, the employer may unilaterally instruct their employees to work from home under certain circumstances; Section 106 of the German Trade Regulation Act (GewO) (employer's right to give instructions) applies in this respect. However, the employer must then ensure that the employee has technical equipment, connectivity and is actually allowed to work in his apartment.

If employers plan to assign their employees regularly to work from home over a longer period of time, it is advisable to conclude a separate "home office agreement", which particularly regulates the following points:

• Concretization of the place of work,
• Working time (duration and location, time recording),
• Furnishing of the domestic workplace (requirements: in particular compliance with occupational health and safety regulations, use of private or business work equipment, compliance with data protection and confidentiality regulations),
• Liability (in particular regulation regarding the conclusion of necessary insurance policies),
• Control, access and access rights of the employer, 
• Termination of the home office.