New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Germany

  • at CMS Hasche Sigle

There has been no change to the legal basis for mobile working in Germany as far as the employer-employee relationship is concerned. However, at the end of 2020, the Federal Ministry of Labour and Social Affairs (BMAS) proposed the draft Mobile Work Act. The intention was to give employees a right to request mobile working and discuss the issue so they can reach an agreement with their employer. For any employer that disregards its obligation to discuss an employee's request and fails to issue a refusal in due form and time, the draft law states that the employee's request for mobile work would become part of their contract for six months. However, the draft contains several ambiguities. After employers' associations and individual interest groups (eg, the German Lawyers' Association) expressed reservations, the draft law was not passed. It was not introduced into the legislative process and the German parliamentary elections in September 2021 have rendered it moot.

However, from 24 November 2021 to 19 March 2022, a temporary amendment to the Infection Protection Act imposed an obligation on employers to offer remote working unless any overriding operational reasons exist to the contrary. Employees had to accept the offer provided there are no reasons to the contrary on their part. These may be, for example, a lack of space or technical conditions in the employee's home. Since 20 March 2022, there is no longer any legal obligation for remote working. Nevertheless, employers can continue to offer home office voluntarily.

An amendment to the Works Constitution Act brought another change in June 2021, confirming the works council's comprehensive right of co-determination in the organisation of remote working. This very significant development means that a works council can stop measures through which mobile work will be introduced or changed through an interim injunction if it has not given its consent beforehand, or if the refusal has been replaced by an internal arbitration procedure within the company. Against this background, companies need to involve employee representatives in good time if new regulations for mobile work are to be introduced as part of the "new normal".

In principle, the provisions of German labour law only apply to employees. Employees are characterised by the fact that they are deployed within an operational organisation, performing work that is subject to instructions. However, there are two important points to note: platform workers may also be covered, as the German Federal Labour Court ruled in its judgment of 1 December 2020 (9 AZR 102/20); and wherever national law serves to implement EU law, an extension is necessary. Accordingly, managing directors and employees who are in an economically dependent working relationship with a principal (ie, they have a similar status to employees) can also be covered. This might also be relevant to mobile work if provisions to transpose Directive (EU) 2019/1158 on work-life balance for parents and carers into national law and repeal Council Directive 2010/18/EU are planned.

Last updated on 14/04/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Germany

  • at CMS Hasche Sigle

As in other countries in Europe, the provisions of the EU General Data Protection Regulation (GDPR) and its German implementation in the shape of the German Federal Data Protection Act (BDSG) must be observed. Against this background, special measures must be taken to protect personal data in connection with remote work. This especially concerns third-party access to systems when computers and other portable devices are used in the home or on the go. To this end, employers often issue guidelines of standards with which employees must comply.

Also, remote working poses many data protection risks in terms of IT security and confidentiality. For example, cybercrime exploits the vulnerabilities inherent to remote working to infiltrate IT systems and steal confidential data, for instance through phishing attacks. At the same time, the confidentiality of a phone call, for example, is harder to protect while working in a co-working space, on a train or at home than in a typical workspace. Therefore, remote working may require different security measures and employers should inform their employees accordingly. In this regard, the European Union Agency for Cybersecurity last year published cybersecurity tips for remote working, both for employees (connecting to the internet via secure wi-fi networks, fully updating antivirus software and using a secure connection) and for employers (providing initial and regular feedback to employees on how to react if problems arise and restricting access to sensitive systems, etc.).

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Germany

  • at CMS Hasche Sigle

Employers may have various legitimate reasons to scrutinise and monitor employees' performance or conduct during remote work (eg, productivity, to enforce company policies, protect business secrets, health and safety obligations). However, monitoring worker activity is only permitted in any given case if the employee's privacy interest does not outweigh the employer's legitimate interests. Therefore, employers must justify employee monitoring on a case-by-case basis.

As a result, while monitoring employees via webcam is generally not allowed, monitoring employees' browser history or emails might be possible if the employer prohibits private use of the laptop; there is cause for the monitoring; and the measure does not lead to permanent monitoring of the employee's digital behaviour. Irrespective of this, if a works council has been established, the employer also needs the consent of the employee representatives to use a technical device that monitors employees' performance or behaviour. This is the case with any software.

In any event, the use of a keylogger that continuously records an employee's activities is unlawful. The data cannot be used in a procedural dispute, as the German Federal Labour Court ruled in its judgment of 27 July 2017 (2 AZR 681/16). Employers must always bear in mind the need to comply with the principles of the GDPR and the BDSG, as the personal data that employers collect when monitoring remote work is sensitive data. Employers must therefore take all necessary measures to ensure data confidentiality and secure access to company servers. Monitoring of private emails or private browser history is only permitted if there are clear signs that the employee has committed a criminal offence, but even then, the investigation must be proportionate.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Germany

  • at CMS Hasche Sigle

Employers are usually required to provide the necessary work equipment when remote working is agreed upon. The obligation to provide work equipment includes office furniture (such as office chairs and desks), IT equipment (hardware and software), office materials (such as stationery and toner) and the necessary telecommunications (like a telephone or internet connection). However, employers are exempt from this obligation if an employee voluntarily chooses to work on a mobile basis despite the business providing company premises.

If the employer and the employee agree that the employee will work at home, the employer usually pays for electricity, heating and internet. However, one-off agreements are usually made in these instances. In addition, the worker is generally provided with a laptop and additional equipment to ensure data security. Office equipment is usually only provided if the employee works exclusively from home (ie, no workstation is provided on company premises). Employers do this not only to save costs, but also to avoid having to check – which is controversial – whether the work station where the employee is working remotely complies with the general principles of health and safety.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Germany

  • at CMS Hasche Sigle

There can be potential issues and risks concerning the taxation of salaries, social security coverage (eg, Regulation (EC) No 883/2004) and the applicable labour law for employers in the context of cross-border remote-working agreements (eg, article 8 Rome I Regulation).

For employees who live in a different country than where the employer is based, special regulations in double-tax treaties for cross-border commuters might normally apply.

However, due to the pandemic many cross-border commuters stay at home and work remotely. As such, they no longer meet the conditions to be considered cross-border commuters and the double-tax treaties cease to apply. To avoid a change in the previous tax treatment because of temporary remote working, bilateral agreements have been reached, for example with Austria, Switzerland, France, Belgium, and Luxembourg. Pandemic-related home working days are deemed to be performed in the country of employment. The agreements are extended until June 30, 2022.

Last updated on 14/04/2022

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Germany

  • at CMS Hasche Sigle

The employer is required to pay remuneration based on an employment contract or collective bargaining agreement. Normally, there are no clauses in that contract that provide for a reduction in salary if the employee works remotely. However, special allowances for the reimbursement of expenses that become obsolete due to working from home (such as meal allowances or reimbursement of travel expenses) may no longer apply in individual cases.

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Germany

  • at CMS Hasche Sigle

Employees in health care and nursing facilities will be legally required to be vaccinated against COVID-19 as of March 16.  Accordingly, employees must submit proof of vaccination or recovery by March 15, or they must have proof that they are medically exempt from the requirement to be vaccinated against coronavirus. Employers are supposed to check the vaccination or recovered status of their employees and submit the proof to the health department upon request. Failure to do so will be treated as a misdemeanour.  As of March 15, the health department can then issue a prohibition against affected persons entering the company or facility. If, as a result, the employee is unable to perform his or her contractually agreed activity, he or she has no claim for compensation against the employer. If an employee persistently refuses to provide proof of 2G or a medical certificate of contraindication, the entitlement to continued payment of remuneration ends. Some courts even accept that the employer terminates the continued payment of wages even before a decision by the health authorities. Whether the lack of immunisation also entitles the employer to terminate the contract is disputed, because the obligation to immunise in health care and nursing facilities is due to end on 31.12.2022.

In other sectors will be no legal obligation to be vaccinated against covid-19. Nevertheless, there is an ongoing discussion to change that situation.

Thus, an obligation to be vaccinated cannot be agreed in an employment contract; it would deviate from the basic principles of the statutory rules and therefore be invalid according to the law on general terms and conditions.

Nor can an obligation to be vaccinated be introduced through a works agreement and stipulated by the employer and works council. According to the established case law of the German Federal Labour Court, the parties to a works agreement are bound by the fundamental rights of the German constitution. In this regard, the physical integrity of the employees who are not willing to be vaccinated, which is protected under the German constitution, outweighs the employer's interest in making vaccination compulsory in the workplace.

However, it is not just permissible for employers to promote vaccinations of employees. New legislation leads to the obligation on employers to enable employees to be vaccinated against covid-19 during working hours. Employers shall provide organisational and staffing support to company doctors and the inter-company services of company doctors who carry out protective vaccinations in the company for reasons of population protection. Within the framework of instruction, employees shall be informed by the employer of the health hazards involved in contracting covid-19 and shall be informed about the possibility of protective vaccination. In addition, it is permissible – if controversial – to provide incentives for vaccinations in the form of a bonus. In any event, it is important to avoid discriminating against employees who cannot or do not wish to be vaccinated because of pregnancy, disability or for religious reasons.

Last updated on 14/04/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Germany

  • at CMS Hasche Sigle

Under current law, employers may not – apart from the health care and nursing sector – make employment conditional on employees being vaccinated. If an employer refuses an employee access to the workplace, the employee is not only entitled to continued payment of salary but can also enforce his or her right to employment (ie, through an interim injunction to compel the employer to grant access to the workplace and to provide employment). In addition, there is a risk for the employer that the demand for vaccination will be assessed as discrimination, at least in the case of employees who cannot or do not want to be vaccinated because of pregnancy, disability or for religious reasons.

Based on the new temporary amendments to the Infection Protection Act, a “3G” rule applies in the workplace: employees will only be allowed to get access to their workplace inside company’s premises if they have been vaccinated, have recovered from covid-19 or have been tested (with a negative result) not more than 24 hours before the time entering their workplace. Employers must check whether employees comply with this obligation and keep a record. Employees of nursing and care facilities must regularly submit a negative test even if they have been vaccinated or have recovered.

Last updated on 14/04/2022

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Germany

  • at CMS Hasche Sigle

Yes, in the healthcare and nursing sector.

Last updated on 14/04/2022

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Germany

  • at CMS Hasche Sigle

Data that an employer collects to draw inferences about an employee's health is special category personal data. Such data is granted special protection under the General Data Protection Regulation and the German Federal Data Protection Act. The collection and processing of employee health data for the employment relationship is only permitted if the employee consents, or if it is necessary for the exercise of rights or to meet legal obligations under employment law and if there is no reason to assume that the interests of the employee involved in the protection of his or her data prevails. In case of doubt, a distinction will have to be made according to the type of information and the environment in which the employee is employed. Employers are entitled under the temporary amendments to the Infection Protection Act to store and process the personal data on vaccination or immunisation status for up to six months. The data may also be used to adapt the company hygiene policy based on risk assessment, as far as is necessary. Regardless, employers must comply with the requirements of data protection, in particular by taking appropriate and specific measures to protect the health data of the persons concerned in accordance with the GDPR and the German Federal Data Protection Act.

Furthermore, it is permissible to ask whether an employee has symptoms of covid-19. It is equally admissible – albeit contentious – to ask whether a worker is currently ill with covid-19. This is because, without knowledge of the specific danger of an illness, the employer cannot take any special protective measures and might endanger other employees and third parties by employing that employee.

Last updated on 30/11/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Germany

  • at CMS Hasche Sigle

Employers' main considerations regarding the health and safety of remote workers should focus on a risk assessment of their remote workplace and the safety training of remote workers. It should be emphasised in this context that employers are only required to do what is actually within their power and control. In the case of remote working, employers are therefore particularly dependent on their employees' cooperation to ensure occupational safety.

Based on these considerations, remote workplaces must be subject to a risk assessment. Employers may try to personally inspect the workplace at the private home of an employee. However, this is unusual and, because of the constitutional protection of the integrity of the home, is subject to the employee's consent. Furthermore, especially in the case of mobile work, it must be taken into account that the place of work is not fixed and is determined by the employee. Thus, the employer usually requests the information required for the risk assessment by obtaining sufficiently specific information from the employee. The physical stresses resulting from the location of the workplace, the equipment of the work materials, the amount of light at the workplace, the height of a work desk; and the working environment must be taken into account. This applies to private workplaces as well as to workplaces in co-working spaces or other work environments (eg, hotel, train). Also, the psychological stress resulting from the duration of working hours, the lack of (personal) contact with colleagues and customers or the increasing mixing of private and professional life must be recorded. Based on the risk assessment of the remote workplace, the employer must prepare instructions on necessary measures to protect health and safety and ensure those instructions are implemented. These instructions should enable the employee to recognise and avoid hazards in their remote workplace.

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Germany

  • at CMS Hasche Sigle

The pandemic has great implications for employers' health and safety obligations towards their employees, especially concerning mental health challenges due to the change in working conditions during the pandemic. This includes the isolation of workers, the lack of social contact, stress caused by the erosion of work boundaries and the resulting mixing of private and professional duties. This affects women in particular, who in many cases have taken on special duties at work and home and are thus under greater strain. Assuming that mobile work will continue to be of increasing importance after the end of the pandemic, it is important to keep an eye on these stresses and to define sustainable countermeasures.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Germany

  • at CMS Hasche Sigle

In principle, employers are required to carry out an analysis of the physical and mental hazards for mobile workers as well as for workers who are deployed in a home office. Of course, the specifics of the covid-19 pandemic must be taken into account. However, if an employer sets up a permanent work station in the employee's home or a co-working space, German law specifies these duties in the Workplace Ordinance. This includes not only a risk assessment and subsequent instruction for the employee so that the health hazards of working from home are avoided. The employer is also required to ensure compliance with the EU regulations of the Display Screen Equipment Ordinance. This contains technical specifications on the equipment of the workplace as well as regulations on how the work itself must be organised (eg, breaks with mixed activities).

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Germany

  • at CMS Hasche Sigle

In general, employers are required to take the necessary occupational safety measures, taking into account the circumstances that affect the health and safety of employees at work, even if employees are working remotely. Thus, the employer must organise the work in such a way that any hazards to mental or physical health are avoided as far as possible and any residual hazard is kept to a minimum. Necessary measures to protect employees must be planned, taking into consideration communication technology, the organization of work, other working conditions, social relationships and the influence of the environment on the workplace. Nevertheless, since mobile workers choose their workplace, employers are not directly responsible for the design of that workplace. This certainly applies where workers voluntarily choose to work on a mobile basis. However, employers must point out the possible dangers and ask the worker to take appropriate, necessary and reasonable measures to protect his or her health. The employer is also required to regularly check that those instructions have been understood and implemented.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Germany

  • at CMS Hasche Sigle

Termination for operational reasons requires the absence of a permanent need for employment. If this is only temporary, in general, this does not justify terminating the employee's employment. This also applies to temporary closures ordered by the authorities. Termination for operational reasons should be a last resort, even in times of a pandemic. The employer must introduce short-time work or a reduction in vacation days before giving notice.

Short-time work can temporarily shorten working hours and reduce the employee's entitlement to remuneration. The aim of ordering short-time work is to prevent redundancies and to preserve jobs. The employer has a unilateral right to order short-time work if it is permitted to do so by a collective-bargaining agreement, works council agreement or employment contract. Due to the covid-19 pandemic, various special regulations apply in the area of short-time work. That includes the payment of social security contributions. Special regulations in force for short-time allowance allow the employer to be reimbursed for 100% of their social security contributions up to 30 September 2021.

The employer cannot unilaterally reduce salaries just because workers cannot be employed during the crisis outside of short-time work. The employer bears the risk of employing workers even in a crisis and is required, if necessary, to pay the full salary even without employment.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Germany

  • at CMS Hasche Sigle

In the covid-19 pandemic, trade unions and employee associations demanded that employees be granted the right to work from home. Moreover, they required that compliance with regulations concerning remote working and occupational health and safety regulations should be monitored.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Germany

  • at CMS Hasche Sigle

In Germany, employers are not required to consult or involve trade unions or other employee associations when a remote-working arrangement is introduced. Employers can, however, voluntarily enter into negotiations with the union to make arrangements for mobile work at the collective bargaining level.

More important is the involvement of the works council. The works council does not have a say in whether the employer allows mobile work. However, if the company has decided to allow remote working, the works council must be fully involved in any further arrangements. This includes, for example, the distribution of mobile work and office work, work equipment, the design of tasks, data privacy issues, working time and accessibility, and any plans for monitoring workers during mobile work. This is especially true after the Works Council Modernisation Act came into force in 2021, as Victoria Kaule and I have described elsewhere.

Last updated on 21/09/2021