Especially in these times, the topic of home office has come very much to the fore and has gained enormous importance for the world of work. In recent months, a package of home office measures has been intensively negotiated at the level of the social partners.
The Home Office Measures Pact is intended to create a regulatory framework that will bring flexibility and predictability to employers and employees alike with regard to the provision of work.The Home Office Act was passed by the National Council on 25.3.2021, but at the time of writing this article has not yet been published in the Federal Law Gazette.
The tax law part of the home office package has already been passed in the National Council in February 2021 and will enter into force retroactively as of 1 January 2021, the employment and accident insurance law part as of 1 April 2021.
What is home office?
A home office exists if the employee "regularly performs work at home". This does not mean that the work is performed at any location, but rather in a private residence. This can be the employee's own home, but also a second home, the home of the partner, the home of the parents, etc.
Excluded from the definition are those cases in which work performance away from a home is agreed, such as in a coworking space or in another public place (coffee house, park, etc).
Is there an obligation for employees to work in a home office or for employers to offer home office work?
The new regulation neither provides for a right to home office nor for an obligation to do so. Employees and employers must therefore continue to reach an agreement on partial or complete work from home, which must be explicitly in writing in the future. No signature is required - agreements are also effective if they are concluded electronically (e.g. via e-mail, IT tools or by mobile phone signature).
What are the rules for terminating a home office agreement?
The conditions for terminating the home office agreement can be contractually regulated. A time limit can also be agreed.
It has been clarified by law that - irrespective of the contractual agreement - termination for cause is possible in any case subject to a notice period of one month. In this context, personal sensitivities (e.g. the employee lacks personal contact with colleagues and customers) are not relevant, but actual valid reasons, such as a loss of accommodation.
Does a company agreement have to be concluded for home office work?
To date, there has been no separate company agreement for a home office regulation in the law; this was only regulated in some collective agreements.
In the future, the fact of "establishing framework conditions for work in the home office" will be added to the law as a possible voluntary works agreement. This still does not mean that there is an obligation to conclude such a works agreement (nor that it can be enforced via the conciliation body), but it does provide a legal basis for a regulation, for example on work equipment or the reimbursement of costs.
Who is liable for damage to work equipment in the home office?
The provisions of the Employee Liability Act (DHG) also apply to home offices. Here, a clarification is made according to which damage caused by members of the employee's household or pets to work equipment provided by the employer is to be attributed to the employee. As a result, the provisions on the possible moderation of the amount of liability are also to be applied in these cases.
Are the provisions of the Employee Protection Act applicable in the home office? May the labour inspector enter employees' homes for inspections?
There is no legal change in the scope of application of the Employee Protection Act (ASchG) or the Labour Inspection Act (AIG). To put it briefly: In the future, a workplace in the employee's home will still not have to be inspected according to the standards of an office workplace. It is clarified that employers are required to instruct employees on the requirements of workplace design - for this purpose, an information brochure and a guideline are being developed by the Ministry of Labour. It will also be possible for employees themselves to carry out an evaluation on the basis of a template. It remains unchanged that the labour inspectorate has no right to enter the private rooms of employees.
Does accident insurance cover apply in the home office?
The current Corona regulation (a clarification in the law that activities in the home office are also covered by accident insurance) will become permanent law.
Who must provide which work equipment? What is the situation under tax law with regard to compensation paid by the employer to the employee?
It is clarified that the employer is obliged to provide the employee with the "necessary digital work equipment". This is understood to mean PC/laptop, telephony (mobile phone) and data connection (internet).
If the employer does not provide this package and the employee has to make use of his own work equipment here, an appropriate (flat-rate) compensation must be paid. The actual amount is to be determined in the individual case.
At the same time, the following is clarified in terms of tax law (limited until the end of 2023):
- Required digital work equipment provided by the employer does not trigger any tax liability and is therefore not to be regarded as remuneration in kind.
- Payments made by the employer to the employee are exempt from tax for up to 100 days in the amount of up to EUR 3 per day. The maximum amount is therefore EUR 300 per year.
These payments can include both the above-mentioned lump-sum compensation for digital work equipment that is not provided but is required, as well as any voluntary compensation. In total (obligatory as well as voluntary payments), the amount is capped at (a maximum of 100 times) EUR 3 per day or EUR 300 per year.
- If the lump sum is not exhausted, the employee can claim the difference up to a maximum of EUR 300 himself as income-related expenses.
- In addition, employees will be able to deduct self-reported costs for the purchase of ergonomic furniture up to an amount of 300 euros per year. This will partly come into effect retroactively for 2020.
What applies with regard to working time legislation? Are other regulations regarding maximum working hours or rest periods to be observed in the home office?
All provisions of the Working Hours and Rest Act remain unchanged. Thus, the same provisions apply in the home office as in the office workplace. As in the past, a balance recording (instead of the minute-by-minute recording) can be carried out within the scope of the working time recording if the employee works predominantly in the home office.
- Home office sample agreement PDF
(individual agreement in the absence of relevant company agreements)
Trade Association of the Paper Industry
Tel: +43 1 58886 205