On March 1, 2021, a comprehensive amendment to the Labor Code came into effect, introducing several changes to the regulation of labor relations. To prevent the spread of the coronavirus, many employers have implemented so-called “home office” arrangements, or working from home. In this article, we would like to clarify the conditions for working from home and answer frequently asked questions related to working from home.
Work from home, telecommuting, and home office
When discussing work from home, it is necessary to distinguish between work from home, telecommuting, and the home office, which refer to ways of performing work outside the employer’s workplace. The fundamental distinguishing criterion used by the legislature is the regularity of performing work from home. While in the case of home-based work and telecommuting, the employee performs work from their home on a regular basis, the home office allows the employee to perform work from home only occasionally or under exceptional circumstances (e.g., due to ongoing renovations at the workplace).
The difference between telework and home-based work lies in the fact that in telework, the employee uses information technology—most commonly a computer and a telephone—to perform their job duties and communicate with the employer or clients. An example of home-based work is a carpenter who manufactures furniture for an employer in their workshop, or a seamstress who sews custom-made garments at home. On the other hand, a call center agent who needs a mobile phone to perform their work is an example of telework.
Requirements for performing work from home
The basic prerequisite for performing home-based work or telework is an agreement between the employer and the employee in the employment contract. Since the place of work is one of the essential elements of an employment contract (Section 43(1) of the Labor Code), it must also be the subject of an agreement for home-based work and telework. If the nature of the work permits, the employee may determine the place of work. Regarding working hours, the employment contract may specify whether the employee will schedule their own working hours for work from home or telework, or whether such work will be performed under flexible working hours. If the employee schedules their own working hours, they are not entitled to overtime pay or wage premiums for work on holidays or weekends.
The Labor Code sets forth two prerequisites for working from home: the employer’s consent to this form of work and the fact that the employee performs work that allows for working from home. Under normal circumstances, therefore, an employer cannot unilaterally require an employee to work from home. However, during a state of emergency, a state of emergency, or a state of exception, and for two months following their revocation, the employer is authorized under Section 250b to order (even if the employee does not agree) the employee to work from home if the nature of the work permits it and the employee’s presence at the workplace is not essential, or if their presence poses a risk given the current situation. On the other hand, the employee themselves also has the right to work from home under the conditions set forth by law.
As of February 8, 2021, pursuant to a government regulation, working from home is mandatory for everyone whose nature of work permits it. However, the greatest challenge for the Labor Inspectorate itself is determining whether the nature of the work allows for remote work. As an example, here are some questions labor inspectors may use to assess the possibility of working from home:
- Does the work have to be performed at a specific location? (e.g., an employee operating an assembly line cannot be ordered to work from home).
- Can the employer provide the necessary technical equipment, such as access to the systems the employee uses? (e.g., an accountant who has access to the necessary software can work from home).
- Does the job require the employee’s physical presence at the workplace? (e.g., journalists can write and prepare articles from home).
- Can the employer ensure the protection of personal and confidential data when working from home? Many employees handle confidential information in their work, which could become the target of cyberattacks if they work from their own devices; therefore, if the employer cannot ensure the necessary protection, mandating work from home could lead to a leak of confidential data.
We note that inspections by labor inspectors of companies that have allowed their employees to work from home are difficult to carry out, and many experts consider them unrealistic.
Working Hours for Home Office and Their Monitoring
Unlike domestic work and telework, in a home office, the employee does not schedule their own working hours. As an occasional method of working from home, the home office replaces work performed at the workplace and, for this reason, mirrors the employee’s regular working hours. The employer is required to notify the employee of any change in the work schedule at least two days in advance, unless the employer and employee agree on a shorter notice period, and such changes must be valid for at least one week.
An employee working from home has the right during their daily rest period and weekly rest period, provided that on-call duty or overtime has not been ordered or agreed upon for that time, during vacation, on a public holiday for which work has been canceled, and during work-related obstacles, not to use work equipment intended for the performance of their work. The employer must respect the employee’s right to “disconnect” and may not consider a refusal to work during rest periods as a failure to fulfill work obligations.
Employers complain that with remote work, they cannot effectively monitor the time employees actually work. We therefore recommend monitoring compliance with working hours, for example, by submitting daily reports or recording hours worked in available electronic programs.
Entitlement to meal allowances while working from home
Since working from home replaces standard work performed at the workplace, entitlement to meal allowances is assessed in the same way as when an employee performs work at the employer’s workplace. This means that, pursuant to Section 152 of the Labor Code, the employer is obligated to provide employees working from home with meals that meet the principles of proper nutrition or to provide them with a financial allowance, provided that the employee works for more than four hours during a work shift.
Conditions for Working from Home
An employee working from home is obligated to immediately inform the employer of any technical issues related to the malfunction of technical equipment or software, an internet connection failure, or other similar causes that prevent them from performing their work.
It should be emphasized that if an employee agrees with the employer to use their own equipment while working from home, they are not entitled to reimbursement for increased expenses. The amendment to the Labor Code requires the employer to reimburse the employee for demonstrably increased expenses associated with the use of their own tools, equipment, and items solely in connection with the performance of work from home or telework. Even with this provision, however, the question arises as to how an employee should prove these increased expenses, which most often relate to electricity or internet.
The Labor Code does not regulate any further conditions for working from home. We therefore recommend that employers agree on clear rules for working from home with their employees and subsequently adopt an internal regulation or amend the collective or employment agreement with an addendum. Many employees have come to enjoy working from home, and it is reasonable to assume that they will want to continue working this way even after the pandemic ends. Clear rules for working from home—which until now has been merely one of the company’s benefits—will bring greater certainty to labor relations and help prevent disputes.
Our team of labor law experts guarantees the provision of effective legal services. If you need advice or assistance with any labor law issue, please do not hesitate to contact us. The law firm Hronček & Partners, s. r. o. is at your full disposal.
