Detailed home-office regulation still not in sight

While with the COVID-19 pandemic working from home has been a hot labour-law topic for over a year, its detailed regulation in the Labour Code is still missing. This should change with the amendment to the Labour Code proposed by KDU-ČSL deputies. However, at the end of March, the government issued a negative opinion on the bill; thus, it is now questionable whether it will be passed at all. Until then, employers have no choice but to rely on regulating work from home by internal policy or by individual agreements with employees.

According to the Labour Code, dependent work must be performed “for a wage, public sector pay or remuneration, at the employer’s expense and responsibility, during working hours, and at the employer’s workplace or other agreed-upon place”. This means that if an employee is to work from home or a place other than the employer’s workplace, this has to be agreed-upon between the employee and the employer; work from home cannot be ordered to employees, and at the same time, employees have no right to work from home. Detailed conditions may be regulated by internal policy.

Apart from the above premise, the Labour Code only contains one provision which governs situations where employees do not work at the employer’s workplace and also schedule their own working hours. For this specific group of ‘home workers’, the Labour Code stipulates a few exceptions to the standard rules: they are not subject to the provisions on working hours, downtime or interruptions to work caused by adverse weather conditions; furthermore, they do not receive a wage or time off for overtime work, or time off, wage compensation or extra pay for work on holidays. With some exceptions, these employees also do not receive wage compensation for personal impediments to work.

However, if employees do not schedule their own working hours, the above exceptions do not apply to them. Such employees are then subject to all provisions of the Labour Code applicable to employees working at the employer’s workplace. In this respect, an often neglected duty when working from home is the record-keeping of working hours: the employer shall always keep records of the employees’ working hours and check that the employees observe periods of rest and breaks at work. Therefore, it should be agreed with the employees that they will provide the employer with the necessary cooperation to this end.

Another frequently discussed issue of working from home is occupational health and safety. The fact that work is carried out from home does not automatically free the employer from their responsibility to ensure that the employee’s workplace is safe, or from their liability for on-the-job accidents. OHS issues should not be considered simply in terms of the safety of the employee’s home workplace, but also in terms of providing the employer with the option to check the employee’s home workplace and investigate any reported on-the-job accidents, as, if on-the-job accidents are not properly investigated, employers risk sanctions by the Labour Inspectorate. In extreme cases, the insurer may even refuse to pay insurance benefits, in whole or in part. Please also note that permission to enter the employee's residence must be agreed-upon, not just provided for by an internal policy.

As the home-office agenda is rather extensive and still very topical, in the next issue of the Tax and Legal Update we will look into some ‘true’ or ‘false’ statements regarding the employers’ duty to cover any extra costs, or the option to monitor employees working from home, including the limits that an employer should not cross.

 

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