The COVID-19 pandemic has revealed one of the major deficiencies in Czech employment legislation: the almost non-existent regulation of home working. Due to this absence in legislation, employees working from home are theoretically subject to the same rules as if they were working at their employer’s workplace, while the actual circumstances are significantly different. As a result, employers must in particular obtain their employees’ consents to work from home, reimburse the employees for the costs incurred, and ensure compliance with occupational health and safety regulations. To be on the safe side, employers should substitute the missing home office regulation at the national level with appropriate internal measures and policies. That said, it seems that many Czech employers still do not reflect home working in their employment documentation.
In this article, we provide a brief summary of the key issues and risks that employers should take into consideration when allowing home working and recommend how employers can comply with their legal obligations.
Mandatory agreement on working from home
Employers must bear in mind that they cannot order employees to work from home and employees cannot demand to do so. Therefore, the employer and the employee must conclude an agreement in which they not only agree not only on home working as such but also specify their mutual rights and obligations during the home working period. Employers should be also mindful of setting objective and fair eligibility criteria for home working to avoid potential unequal treatment claims.
Change of the place of work
If the place of work agreed in the employment contract does not cover the employee’s home address, it is necessary to amend the employment contract by a written amendment. To avoid the necessity to change the employment contract for the return of the employees to their original workplaces, the employer should agree with the employee on an alternative workplace, thereby covering both the employer’s workplace as well as the employee’s home.
Reimbursement of costs
The employer must create the conditions for its employees to perform work. Regarding employees working from home, this means that the employer should, among others, cover the costs related to performing work from home. In other words, the employer must reimburse all costs which the employee would not incur if they worked at the employer’s workplace (including internet connection, water, electricity, heating and wear and tear of employee’s own equipment and furniture). As it may be particularly difficult to determine the actual costs related to the performance of work at home, employers often pay employees a flat weekly/monthly reimbursement. The reimbursement of costs inevitably triggers tax consequences, therefore we strongly recommend that employers seek tax advice before they implement any cost reimbursement mechanisms.
Health and Safety compliance
Under the Labour Code, it is the employer’s responsibility to ensure that the employee’s workplace complies with occupational health and safety requirements. In theory, regarding employees working from home, the employer would be required to perform occupational health and safety checks at the employee’s home to ascertain compliance with the relevant laws and regulations. Nevertheless, from the practical point of view, unexpected visits at the employee’s home undoubtedly interfere with their privacy and may lead to a conflict with the employee. The employer may enter the employee’s home only with the employee’s consent. It is therefore important to agree with the employee how compliance with health & safety requirements will be ensured when they work from home. A suitable solution may be a workstation assessment performed by the employee, a confirmation that their workplace meets the health & safety requirements, or an agreement specifying the terms under which the employer may enter the employee’s workplace for the health & safety check.
If the employee suffers an injury when performing work tasks or in direct relation thereto, such injury will be deemed a work injury irrespective of whether the employee works from the employer’s workplace or home. However, if the employee performs work from home, it may be extremely difficult to ascertain whether a particular activity (e.g. walking down the stairs) directly relate to the performance of work or not. As a result, employers may face employee claims for compensation for work injuries in situations which fall within a “grey zone”.
Working time records
The fact that employees work from home does not free employers from their obligation to track and keep mandatory records of working time. Nevertheless, without the employee’s cooperation, the employer in unable to track working time accurately when they work from home The agreement on work from home or internal home office policy should thus specify the rules on the employee tracking working time and the obligation to report the relevant data to the employer.
Risks associated with remote work from abroad
With the summer holidays season approaching, employees often ask to be permitted to work from another country. Without agreeing with the employer on rules framing the temporary remote work from abroad, this situation may trigger significant risks for both parties, especially in tax, social security and health & safety areas. Employers should therefore first investigate the legal risks in the target countries in order to set forth specific criteria under which remote work from abroad would be allowed.
As we are possibly entering a period when regular home working will become the new normal for some, the employers should be sure to adopt appropriate measures to target the considerations and risks associated with working from home. Our employment team will be happy to assist you with this.