On 23 April 2021, the new § 28 b para. 7 IfSG (Infection Protection Act) came into force. This means that working from home is no longer simply an entitlement of the employee but also a legal obligation. The feeling of insecurity triggered by this has grown considerably, as can be seen in reports according to which the new law prohibits working in the office. In fact, the regulation is limited to an appeal to employees – sanctions are practically excluded.
The new regulation
§ 28 b para. 7 IfSG reads:
“In case of office work or comparable activities, the employer shall offer the employees the possibility to carry out his/her work in his/her home as long as there are no compelling business-related reasons to the contrary. The employees shall accept this offer, insofar as there are no reasons to the contrary on their part. (…)”
More precisely, the preamble (Bundestags-Drucksache 19/28732) reads:
„Employees have to carry out office work or comparable activities in their homes, as far as this is possible for the employees. Reasons preventing this may be, for example, lack of space, disturbances by third parties or lack of adequate technical equipment. A notification by the employee upon the employer’s request, that working from home is not possible, suffices as statement.“
Employees’ obligation to work from home
As recognised in case law and literature even before the current amendment to the law, the duty of consideration under the employment contract (§ 241 II BGB (German Civil Code)) as well as the principle of solidarity and good faith (§ 242 BGB) can result in the employee’s obligation to work from home in exceptional and emergency situations. During the Corona Pandemic, this could be the case if an employee is quarantined after vacationing in a risk region because of a possible infection.
The legal regulation in § 28 b para. 7 IfSG clarifies that in the current situation, there is generally an obligation to work from home if the employer is offering it. Therefore, the individual examination, as to whether there is an exceptional or emergency situation, is unnecessary.
At the same time, however, the law gives the employee the possibility of refusal when there are “reasons” to the contrary. These may be interpreted broadly as seen in the preamble. One reason might be “for example” the lack of space in the employee’s apartment or the lack of adequate technical equipment. Thus, in order to refuse working from home, the employee can ultimately claim any not obviously irrelevant or only ostensible circumstance.
Of course, however, the requirements for the importance of the “reason” for refusal increase as the employer relies on the employee’s work in the home office, e.g., because the employer cannot provide enough work places from the point of view of infection prevention. It can simply not be assumed that the new regulation aims to give the employee more possibilities for refusal than already existed under the previous legal situation
As a result, the employee‘s obligation to accept work in a home office is not significantly extended by the new regulation.
Sanctions by authorities?
The law does not provide for official sanctions against employees who refuse the employer’s offer to work from home without good reason. In particular, violations are not punished by fines.
Sanctions by the employer?
But sanctions by the employer can also be considered in exceptional cases at best. This is because the requirements for the “reason” for refusal are generally low, as already explained. Moreover, as can be seen in the preamble, employees can limit themselves to a statement to the employer that it is “not possible” for them to work from home. Generally speaking, the employer has no possibility to verify this.
Exceptions are possible if, for example, the employee has already worked from home and now refuses to do so. In this case, at least, she/he cannot invoke that his/her home does not provide enough space for a home office.
Participation rights of the works council
One presumably unintended side effect of this new regulation could be a reduction of the works council’s participation rights. This is because the co-determination of the works council only then and insofar applies if the employer itself has discretion in the matter. However, the employees’ legal obligation to work from home also restricts the employer’s scope of action at least indirectly. Accordingly, it will be able to point out in the negotiations with the works council that the introduction of home office is in any case also based on a legal obligation of the employee which is beyond its control.
The new § 28 b para. 7 IfSG is an appeal to employees to work from home and thus to limit their contacts to a minimum due to the pandemic. A significant change of the previous legal situation is not given. A „legal ban“ on working at the company’s premises is an exaggeration by the media without any legal basis in the new Infection Protection Act.