The resolution only mentions the topic of home office in one sentence. Employers are to be obliged to "enable employees to work from home wherever possible [...] provided that the activity allows it". This is intended to reduce contacts both at work and on the way to work.

The Ordinance implements this regulation by stating that the employer "shall offer employees in case of office work or comparable activities to carry out these activities from their home if there are no compelling operational reasons to the contrary".

So far, there is no statutory entitlement to work from home. Whether the employer can unilaterally impose home office depends on the employer’s right to issue directives and the provisions of the employment contract.

The Ordinance contains the wording that the employer must "offer" the employees to work from home. This does not establish a corresponding obligation for employees to work from home. As before, it can be assumed that, even on the basis of the new regulation, the employer cannot unilaterally enforce home office against the will of the employees. On the other hand, the position of employees is strengthened to the extent that employers are now in principle required to offer home office work for reasons of occupational health and safety. Nevertheless, the explanatory memorandum to the Ordinance states that this regulation does not establish a subjective right for employees to sue and thus - as before - employees are not to be granted a direct legal claim to work from home.

While the resolution of 19 January 2021 provides for employers to be required to offer home office work "wherever possible", the Ordinance specifies this restriction to the effect that the offer must be made in the case of "office work or comparable activities". This means that, for example, activities in production or in the retail sector as well as in parts of the service industry are generally excluded.

Employers do not have to offer home office work if there are "compelling operational reasons to the contrary". Neither the Ordinance nor the explanatory memorandum go into this in detail. A reason for refusal might exist, for example, if the technical requirements for working from home are not met and cannot be met in the short term (e.g. if employees need access to a certain system to carry out their work) or because the nature of the work does not allow it to be carried out outside the usual place of work. The explanatory memorandum to the Ordinance also points out that the "spatial and technical requirements in the employee's home" must be met for working from home. There are still many open questions of interpretation in this regard.

As this is an occupational health and safety measure, the responsible occupational health and safety authorities can generally take the measures resulting from the Occupational Health and Safety Act. These range from inspection and monitoring to orders, non-compliance with which could lead to prohibition of work outside the home office. Violations of such orders can also be punished with fines. Further consequences of a violation may include the right of employees to refuse to work. The works council is likely also able to take up the issue due to its enforceable right of co-determination with regard to occupational health and safety measures and, within the framework of its right of initiative, may, for example, agree on specific provisions on the implementation of the obligation to offer home office with the employer or enforce them via a conciliation board.

If not already done, employers must check with regard to the positions in question whether the related work can be carried out from the home office. If the employer wants to claim that the work cannot be carried out at home due to compelling business reasons, it is advisable to keep a record of the examination and the reasons for the result, as the reasons for refusal must be explained in the event of an official request by the competent authorities.

According to the Ordinance, the employer only has to "offer" to work from home, provided that the relevant conditions are met. The regulations does not contain a corresponding obligation for employees to take up this offer. Therefore, for now, the principle remains that the introduction of home office work must be covered by the provisions of the employment contract or agreed with the employee. A regulation via works council agreement is also possible. Employers who do not yet have home office regulations in place should quickly establish the appropriate legal basis to be able to implement the requirements of the Ordinance.

If employees do not make use of an offer to work from home - for example, because the spatial conditions do not allow to work concentrated at home - it is advisable for employers to document that an offer has been made in view of possible inspections.

The already existing occupational health and safety standards are further extended by the Ordinance. For example, for work areas in confined spaces, the occupancy of the rooms must be reduced and, where sufficient distances cannot be maintained, medical masks must be used, which must be provided by the employer. In addition, the federal-state resolution calls on companies to use flexible working hours wherever possible in such way that the passenger volume in public transportation at the beginning and end of work is rectified as much as possible. In addition, the occupational health and safety standards already adopted last year in connection with Covid-19 must still be observed.

With the Ordinance entering into force on 27 January 2021, working from home will become even more significant in the short term. It is being discussed in legal circles whether the employer's obligation to offer home office can be effectively regulated by legal ordinance or whether it would require regulation by formal law. We will keep you up to date about the current developments here.