A second wave of COVID-19 pandemic has hit, and since Monday, 5 October 2020, a state of emergency has once again been in force in the Czech Republic. In addition to general government restrictions, the home office regime has returned to the working lives of employees and employers as one of the preventive measures of most companies.
Regarding to our practice, we consider it appropriate and necessary to recall some rules with this article, but also mention advantages and disadvantages of the work-from-home regime under Czech law.
Company operation during the coronavirus times
As is known, the SARS-CoV-2 virus spreads through mutual contact, especially through infected droplets, which the infected person excretes when coughing, sneezing, or speaking. Such infected droplets can spread up to a distance of two meters and people can become infected by inhaling or transmitting the virus in the droplet from some surface to the face (typically by touching the mouth, nose or eyes).
Most companies (for which the subject of the business does permit it) apply home office regime to comply with government measures and to the reduce above-mentioned risk of disease transmission.
Main differences of home office mode from “normal” lie mainly in the way the work is organized within working hours. It is the employer’s responsibility to schedule the working hours of each employee appropriately and effectively in normal regime and employer is responsible and bears the consequences for not having enough work for the employee (compensatory wage or salary at the level of average earnings) or for having excess work for him (premium payment for overtime or compensatory time off). However, it the home office regime, it is the employee who schedules working hours completely on his own.
With regard to many responsibilities of working from home, we believe that, in the case of working from home, clear rules and limits should be set for such a regime so that the responsible employer does not end up wondering what consequences the introduction of a work regime from home without its regulation caused.
Advantages and disadvantages of home office
Home office has always been recognized as a form of a certain work benefit (along with sick days, 5 weeks of vacation, etc.). However, this benefit can easily turn to the detriment of the employer or even the employee.
Employee may perceive working hours arrangement and adjustment according to his time options and actual needs as a benefit(especially the one who is not prone to procrastination). He must do it on his own, effectively and in a way which allows him to meet and submit work matters in time.
On the other hand, a certain disadvantage for employees may be that the employee may not be entitled to, if the work at the home office is set up correctly, for example a) wage and premium or compensatory time off for overtime work; b) wage and compensatory time off or compensatory wage for work on a public holiday; c) wage and premium for night work; d) compensatory wages at important personal obstacles to work. Conversely, an employee is entitled to compensation for temporary incapacity for work or if he is placed in quarantine.
In order to be entitled to overtime pay (or compensatory leave), the employee would have to prove that there has been prior written communication between him and the employer, informing the employer that the work assigned to him is not possible within the set weekly working time and despite this warning, the employer instructed him to work overtime. We believe that the same mechanism would then apply to the entitlement to premium payment for night work or premium payment for work during weekends or national holidays.
The main benefits for employers, especially at present, are, of course, an increase in the chances of keeping a company operational, reducing the risk of the disease spreading to a larger number of employees and their subsequent quarantine or incapacity for work, including the protection of their health. At the same time, in a situation where the home office regime proves to be a functional model of the company’s operation, the advantage may also consist in saving fixed costs for the operation and rental of large office spaces.
As for the disadvantages for employers, these are represented mainly by challenging control and management of the employee at the home office, including the rules of occupational safety and control of his workload and proper distribution of work. Working from home thus also entails the need to introduce certain control, procedural and maintenance mechanisms that allow employees to be in contact with the employer and vice versa and sets the basic rules of behaviour when working from home (training, internal guidelines, advice and tips, regular video calls, follow-up consultations, reporting, etc.).
At the same time, there are risks in ensuring the protection of sensitive data and information from unwanted leaks. Typically, we consider it very risky from the point of view of security to connect employees’ home laptops or computers to the employer’s internal network, as the security of such computers is weaker and the infection of the internal network with a virus (obtained, for example, by downloading a movie) is high. Furthermore, it can also be a risk of violating the employee’s privacy and access of unauthorized persons to sensitive company data. It is so good to prevent these situations, especially by the fact that the employer will provide employees with their own computer technology for work from home, which will be subject to a strict protection regime and rules for working with them.
Home office in terms of the Labour Code
Legal regulation of home office regime does not currently exist, and this situation is not yet solved by the Labour Code amendment which is currently being prepared. Even the definition of “home office” is not accurate, because home is not the only place where employee could perform work in this mode, different locations are allowed too. At the same time, it is not excluded if the home office regime is somehow disrupted in a situation where the employee comes to his workplace for some time e.g. to pass on the results of his work or, conversely, to take over documents or anything else.
According to the Labour Code, dependent work must be performed at the employer’s workplace or some other agreed place. That means that the Labour Code allows the possibility of parties to agree on work outside the employer’s workplace. However, at the same time, the employer cannot unilaterally order home office to the employee and, conversely, the employee cannot claim the home office against the employer.
The provisions of the Labour Code apply to a certain extent to the home office regime, with the exception (as mentioned above) of regulations such as: a) the organization of working hours; or (b) downtime and other.
It is thus advisable that the employer and the employee agree upon specifics and conditions of working from home (home office) in written form. The written form of such an agreement is desirable because it necessarily changes the rights and obligations which arising from the employee’s work contract.
Thus, the employee can perform the agreed work outside the workplace in accordance with the employment contract and the newly concluded agreement of work from home. Of course, we cannot exclude the possibility of introduction of home office provisions directly into the employment contract in the form of an amendment to the employment contract.
What should not be missing in such an agreement?
According to our experience, as well as our knowledge of the diverse requirements of employees and employers for work from home, we have come to the conclusion that an agreement to work in a home office regime should certainly include, in addition to general arrangements, provisions about:
- scope of home office regime (number of days per week or month);
- rules for reporting and approving home office work;
- determination of performance of work from home;
- availability and response time;
- participation on regular meetings and conferences;
- conditions and reporting of working hours (e.g. breaks, weekend and night work restrictions, overtime, etc.);
- placement of work by the employer;
- occupational safety and health protection arrangement (in Czech: BOZP) (or training to the extent corresponding to the conditions of the home office);
- compensation of costs (e.g. for internet connection, electricity, for the use – depreciation – of own equipment, etc.), while a flat-rate compensation can also be agreed;
- protection of information and data;
- the treatment of the employer’s property, in so far as it is entrusted to the employee.
We certainly do not recommend the introduction of the regime of work from home only and exclusively by adopting the internal regulation of the employer, as he cannot independently set new obligations for employees and he cannot directly change the employment contract, resp. their arrangements on the content of the employment relationship.
However, in the case of the home office, the internal regulation is appropriate as an additional regulation that can further develop and specify the rules of conduct for employees working in home office mode, such as health and safety, data and information protection, recommendations for healthy work habits, procedural rules and reporting etc.
In terms of accelerating digitization, home office and telework companies are certainly much better prepared than they were a few years ago. Even so, the issue of a correct and responsible approach to the home office regime by employers is often overlooked. The legislator’s approach does not help in any way.
We strongly recommend creating a simple but precise framework of working from home for current and future employees, which should be represented primarily by work agreement in the home office mode and a more detailed internal regulation. Of course, we cannot forget related topics, which fall primarily into the field of general human resources and health and safety and employee care.
In addition, as already mentioned, the elimination of the disadvantages of working from home and the introduction of appropriate internal procedures to adjust the way home office is performed can, in many companies, reduce the cost of renting often unnecessarily large office space.
If you have any questions about this topic, do not hesitate to contact us.
Mgr. Nikol Čišecká, junior lawyer – firstname.lastname@example.org
Mgr. Jakub Málek, partner – email@example.com
16. 10. 2020