Home working – Missing regulation entails risks for employers

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.

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