Problem areas of work from home

14 September 2020

Lukáš Regec, Partner |

Until recently, only a handful of employers offered employees the chance to work from home, and if they did, then only as a benefit. However, with the coronavirus crisis, other employers often had no choice but to adapt and send their employees home. During the rapid transition to home office, many employers did not realise that the Labour Code applies to teleworking in exactly the same way as it does to office working. This comes with a number of obligations for the employer.

Home office is permitted under the Labour Code only by a general provision that introduces the possibility of working from another agreed place and by provisions on so-called home-based employees who, in addition to working from another place, also schedule their working hours themselves. The employee can therefore work, for example, from a café or from a co-working centre.

Home office cannot be ordered unilaterally. Therefore, to establish a home office regime, the employer must sign a written agreement with the employee or arrange this option in the employment contract. The general rules for home office can also be set by the employer's internal regulations. The specific obligations of an employee can only be set out in a bilateral agreement.

What are the responsibilities of the employee and the employer?

As mentioned above, there is no special arrangement for employees working from home (with the exception mentioned above). The parties therefore have relatively more freedom to adjust the conditions of working from home according to their own needs. However, there may be problems with specific rights and obligations in several areas.

The employer has the obligation to assign work and the employee has the obligation to perform the work. However, when working from home, there may be a problem with how work is entered, submitted and checked, as well as with the provision, use and control of entrusted resources (laptop, telephone, etc.). The employer is also obliged to keep records of working hours. However, working from home complicates this obligation to some extent.

Another problematic area is occupational health and safety and dealing with possible work-related accidents. A home-based work regime obliges the employer to provide employees with a safe working environment in the same way as when they are working in the office, even though the employee is outside the employer's effective control.

It is therefore essential that the employee's rights and obligations be carefully defined in the agreement or in the employer's internal regulations. In the agreement, for example, employees may be required to be available by e-mail or telephone at certain times each day, to record working hours and send them to a superior employee, and so on. General health and safety obligations common to all employees may be formulated in the internal regulations, for example.

How best to cover the related costs?

The Labour Code sets up a system in which the costs of performing dependent work are borne exclusively by the employer. It follows that the employee has the right to reimbursement of all costs incurred in the performance of work at the home office (of course, expediently incurred in relation to the work performed). Reimbursement of costs cannot be included in the employee's salary.

In practice, there are two ways in which costs can be reimbursed. The first is the payment of a lump sum, which can partially cover the reimbursement of costs, but it cannot be used for all costs (such as energy). If a flat rate is used for other costs (such as asset depreciation), it is crucial to determine it based on a calculation of actual expenses. Otherwise, the employer could run afoul of the tax administrator, the social security administration or the labour inspectorate, or the employee could seek compensation in court.

The second way is to reimburse all costs actually incurred to perform the work, based on proof of the relevant documents. For example, the employer pays a portion of the monthly invoice for electricity, depending on the time the employee worked from home. Although this option is more certain and more accurate, in practice it can be administratively complex, especially when calculating the part to be reimbursed by the employer. We therefore recommend that the internal regulations clearly and transparently state which costs will be reimbursed and how.

Can employees be monitored in home office?

In principle, monitoring can take place on two levels: software and physical.

The employer can monitor the employee's activity on, for example, an assigned work laptop or work e-mail, but only to verify compliance with the ban on their use for personal purposes, or for serious reasons, in which case the employee must be informed. It is also necessary to keep in mind the protection of the employee's personal data, and the adequacy and appropriateness of the monitoring.

In terms of physical monitoring at the home workplace, although the employer has a legitimate interest in checking up on the employee, it cannot do so arbitrarily. The interest in protecting the employee's privacy is higher according to the principles of labour law. A procedure similar to a check in the event of temporary incapacity for work is out of the question.

To ensure occupational health and safety before the start of work from home and its possible monitoring, and to investigate possible occupational injuries, we recommend obtaining the employee's consent to the employer entering the home workplace in justified cases by means of an agreement between the employee and the employer.

In conclusion

It is primarily up to the employer to maintain relevant tailor-made agreements and internal regulations concerning home office. This is the only way to set clear rules that both parties can follow and to minimise the risks associated with home office.