Why the end of the home office obligation could still cause a lot of trouble
The end of the obligation to work from home comes on July 1st. But that doesn’t necessarily mean that the agreement between bosses and employees is no longer valid. There is anger in the air.
The end of the home office obligation has been decided by the Federal Cabinet. It expires on July 1, 2021. Many employers who prefer face-to-face rather than remote operations are sure to breathe easy. But it is unlikely that everything will be the same as it was before the pandemic. Some clearly established facts from the Infection Protection Act still remain: compulsory tests, hygiene plans and mask compulsory at work, for example, will remain for the time being. The cabinet also agreed on this this Wednesday. A presence operation can therefore still mean a higher administrative effort than the remote operation – at least for the companies that have still not managed to transfer the team to the home office after more than a year.
According to the current state of the development of the corona situation in Germany, an extension of the emergency brake cannot currently be assumed, according to the political establishment. The number of positive PCR tests in Germany is falling continuously. That is good, but that could change again next autumn – especially with regard to new rampant mutations. It is entirely possible that a decision will be made on a new version of the regulation if necessary. The decision would then have to be made in the light of the vaccination quota achieved by then and the predicted protective effect of the vaccines. At the moment, however, there is no reason to assume that tomorrow or the day after tomorrow the home will be blown away to retreat to. However, caution remains the top priority.
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Home office obligation: Paragraph leaves questions unanswered
Another aspect could make employers much more likely to get into the proverbial parade. The legally lax design of the home office obligation on the part of the federal government. The bottom line is that the whole thing looks so that the regulation could well reverberate despite the time limit. Employment lawyer Christian Bitsch has it towards Manager Magazin In a nutshell, he said that Section 28b (7) of the Infection Act was “fairly poorly” crafted and “knitted with a hot needle” due to the urgency of the time. Employers have obliged the federal government to offer employees a mobile workplace wherever it is possible, for example in the home office. And employees are obliged to accept this offer if there are no urgent reasons to do so.
The problem, as Bitsch describes it, is now that the employers have made an offer and the employees have accepted it. Although the official instruction to work from home expires, this does not clearly clarify the withdrawal to the office. According to the lawyer, a contract has been concluded between the two sides, according to which people will work from home in the future. The expert warns that unless both parties have made contractual arrangements, there will be no automatic return ticket. You have to agree again. That was clear to larger companies with in-house lawyers. They have previously made written agreements with their employees in which a clause also regulates the specific return conditions. It remains questionable whether smaller companies did the same. Many, if not all, in the team have recognized the advantages of the home office and could insist on their right to stay.
It is obvious that this can lead to a dispute. It can also be assumed that there will be legal proceedings in the coming months. Where there is a plaintiff, there is a judge. There is anger in the air. In order to avoid this, employers and employees should sit down at the round table and see what a possible return can look like without conflict – if not done in advance. The situation currently looks like that, with the elimination of the home office obligation, both parties can again negotiate the issue completely freely. One and only: Employees are now in a better negotiating position – at least until a court decides on behalf of the employer in the context of a legal dispute and thus provides crystal-clear legal certainty. As always: only what is actually written in black and white counts in the end.
