Working from home has become commonplace in many companies due to the pandemic. Although it is currently not foreseeable whether this trend will continue post Corona, the advancing digitization and associated networking strongly suggests that it is.
In order to take this new reality into account, the legislature has now put together a package of home office measures (“Home Office Act”), which has been in force since April 1st, 2021. In addition to labor law, this package also includes social security and tax law issues (which are excluded below).
According to the new definition in the Employment Contract Law Adjustment Act (AVRAG), home office includes the “regular provision of work in the employee’s home”. The term also includes an apartment in a secondary residence or the apartment of a close relative or partner.
It is essential that, even after the new legal situation, there is still no entitlement to work in the home office. In order to be able to justify home office, a contractual agreement is therefore required between the employee and the employer, since the relocation of the place of performance is usually a fundamental deviation from the previous employment contract agreement.
In principle, the employer is obliged to provide any digital work equipment that may be required in connection with regular work in the home office. If, in exceptional cases, the employee provides digital work equipment, the employer must pay reasonable and necessary reimbursement of costs. Digital work equipment means the required IT hardware and the data connection.
Even if a premature termination of the home office agreement is provided for by law for an important reason, it is strongly recommended that the agreement be either limited in time or that the possibility of ordinary termination be provided.
Also new is a separate company agreement for all branches in the Labor Constitution Act – ArbVG (Section 97, Paragraph 1, Item 27 of the ArbVG: definition of framework conditions for working from home). With this company agreement, a comprehensive regulation of home office at the company level is possible; this also includes those aspects that otherwise fall under other voluntary company agreements, such as the regulation of (flat-rate) cost reimbursement.
In principle, the employer has to make the necessary resources available for the employee, such as hardware and software.
The new legislative package also includes regulations in the Employer’s Liability Act (DHG). Accordingly, it should be ensured that the regulations of the DHG also apply in cases of damage to digital work equipment or saved work results (e.g. construction plans) by relatives or even pets. These cases are to be treated as if the employee were the cause of the damage (for which special liability privileges exist in individual cases according to the DHG).
The issue of data protection is particularly important in the home office, so that the relevant provisions must be made in a home office agreement. This includes, above all, regulations on data security: For example, access data and passwords must always be kept safe and kept secret, and appropriate encryption techniques and deletion routines must be provided. Printed documents should never be disposed of with household waste. It is also pointed out that the use of private devices or private software in the home office usually represents a high data security risk (keyword: “Bring your own device”), so that here, too, very clear regulations are required.
For further information, please contact:
Johannes Paul, Lawyer
Zumtobel Kronberger Rechtsanwälte OG, Salzburg
t: +43 662 624500
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