As a result of the coronavirus, a large part of the employees has been working from home for more than six months. Now that the number of infections is increasing again, it seems that this will last for a longer period. This blog covers a number of employment law aspects of long-term work from home, such as health and safety rules, the employee’s freedom of choice with regard to working from home, the monitoring of the work by the employer and the reimbursement of (additional) costs. Finally, attention is paid to the phenomenon of ‘home working arrangement’, because we notice that many employers consider to introduce such arrangement.
The occupational health and safety rules
In the situation where an employee works form home, the rules laid down in occupational health and safety legislation apply. It is important to provide employees with a healthy workplace at home in order to reduce the risk of absenteeism. If a workplace does not comply with the occupational health and safety regulations, an employee may suffer damage as a result. In principle, the employer is liable for this. Working from home is covered by “location-independent work” in the context of occupational health and safety legislation. This is subject to an alleviated health and safety regime.
According to the occupational health and safety rules, the employer has two important obligations when it comes to working from home. Firstly, the obligation to ensure an ergonomically sound workplace and, secondly, to implement a policy in the field of psychosocial workload.
- The ergonomically sound workplace
The occupational health and safety obligations require an employer to ensure that his employees have an ergonomically sound workplace. This means that the employer must provide the appropriate work equipment, such as an ergonomic chair, desk and keyboard. An employer must also instruct the employee in the correct working posture ( e.g. the correct desk height and the correct adjustment of the desk chair) and the lighting of the workplace.
The obligation also applies if employees work from home, unless application of these rules cannot reasonably be required of the employer (for example, if an employee only occasionally works from home).
In order to guarantee an ergonomically sound workplace as much as possible, we advise employers to proactively advise employees on the optimal design of their home workplace. Try to provide this information simply and clearly, for example by means of a checklist. Such a checklist can be used to identify employees who do not have a suitable home workplace and which missing resources should be made available. Checking can take place by means of a visit by the employer or an occupational health and safety expert, or remotely by means of photographic or film material.
- Psychosocial workload
In addition to the care for a suitable workplace, employers should pursue a policy aimed at preventing (and limiting) the psychosocial workload of employees. Part of this policy is limiting the workload.
In the case of working from home, it is difficult for employers to identify whether (and when) employees are overburdened. The risk of overburdening has increased because many employees are forced to combine their work with (extra) caring responsibilities. In this context, we advise employers to maintain regular contact with their employees and to ask questions about the workload. If there are signs of excessive work pressure, the employer will have to make an effort to help the employee reduce the work pressure to an acceptable level. An employer will therefore have to be flexible in, for example, a situation where the employee is caring for small children who are unable to attend school or day-care because of the coronavirus.
The employee’s freedom of choice
In principle, the employee is not free to choose whether or not to work from home. This will have to be done in consultation with the employer. This does not mean that an employer can ignore the government’s or RIVM’s call for employees to work from home as much as possible. If it is necessary for an employee to appear at the workplace for the performance of the work, the employer will have to substantiate this and also take precautions to prevent contamination on the work floor. If, despite these measures, the employee refuses to appear at work, it will have to be assessed in all reasonableness whether the employee has a good reason to do so. If the employee does not have a good reason, failure to appear on the work floor may result in a refusal to work, with the sanction that no salary is paid for the time he has not worked or, in extreme cases, a summary dismissal.
The monitoring of the work
It can be difficult for an employer to properly monitor the progress of the work of employees working from home. After all, there is no personal contact on the work floor. We advise employers to make good agreements with home working employees about what is expected of them. For example, about accessibility, the distribution of the work, the contact with colleagues and the way of reporting. The employee’s home situation can also play a role in this. In situations where schools and childcare facilities are temporarily closed due to the coronavirus, for example, it can be agreed that the employee will work partly in the evening hours and spend a few hours with the children during the day.
In addition to making agreements with the employee, an employer has the right to give instructions. If an employee does not follow such instructions, the employer can address the employee and, if necessary, apply a sanction. In this context, it is important that the agreements and/or instructions are recorded in writing.
If an employer wishes to make use of software to measure the performance of employees working from home, the intended decision must be submitted to the works council or employee representative body for approval.
In addition, a number of conditions for checking the homeworking employee may be mentioned on the basis of case law:
- The employer must inform the employee in advance that his internet and e-mail activities can be monitored and how this is done.
- There must be a legitimate purpose/legitimate interest and this must outweigh the interest of the employee.
- This goal/interest cannot achieved in a less intrusive way.
- The employer is obliged to take confidential (private) communication of the employee into account.
The cost of working from home
According to Nibud (National Institute for Budget Information), working from home costs about € 2 per day. For employees who work from home for a few months a year, the costs can easily rise to a few hundred euros. This includes the use of coffee, toilet, energy and depreciation on the furniture. Nibud advises employers and employees to discuss compensation for the extra costs they incur.
Employees cannot deduct the costs from the tax. Employers can, however, reimburse certain costs tax-free through the working expenses scheme. These costs can only be reimbursed to the employee tax-free within the free area of the working expenses scheme. The free area amounts to 1.2% of the total wage bill of the employer (over the wage bill up to € 400,000 the free area is 1.7%). For 2020, the free area for the first € 400,000 of wage bill has been increased to 3%.
Another possibility is the fixed travel allowance. If a fixed travel allowance has been agreed, it may be applied until 31 December 2020 based on the (travel) pattern on which the allowance was based. The condition is that entitlement to the fixed allowance is granted no later than 12 March 2020.
Home working arrangement
In relation to all employment law aspects of working from home described above, it may be wise to draw up a home working arrangement. This gives the employees clarity and can contribute to the fulfilment of the agreements. The home working arrangement can include which agreements apply to working from home. If the employer wishes to check the home worker, it will have to be laid down how this check takes place. In addition, rules may be drawn up on the protection of personal data that the employee has at his disposal when working from home.
In most cases, the home working arrangement will have to be submitted to the works council for approval. Such an arrangement will generally qualify as a work and rest time regulation, a regulation on working conditions, a regulation on staff assessment and/or a regulation on the protection of personal data as referred to in article 27 of the Works Councils Act.
If you have any questions about any of these topics or would like to draw up a home working arrangement, please feel free to contact us.