Germany: Home office certificates" - New challenges for employers

The lifting of restrictions due to the COVID-19 pandemic has not only led to a return to personal freedoms, but has also brought many employees back to the workplace. Employers are increasingly trying to "roll back" flexible working options (mobile working or remote working) in favour of a greater obligation to be present in order to increase collaboration and control of their employees. This is being controversially discussed in the media, for example at Google or Tesla. This development back towards a shared working day outside of the home is leading to resistance from some employees. A new phenomenon known as "home office certificates" is now increasingly emerging, which is confronting employers with new labour law issues and challenges, such as what rights and obligations arise for the employer and what options for action are available?

What is a "home office certificate"?

A "home office certificate" is a medical certificate that stipulates that the employee may only work from home and sometimes excludes the employee from working at the employer's premises. The term "home office" is used here to describe the domestic workplace to which the employee's activities are limited. The terms "teleworking" and "mobile working" must be distinguished from this. While the former, in accordance with the legal requirements of Section 2 VII ArbStättV, describes a permanently installed workplace in the private sphere of the employee, mobile work is a flexible, location-independent activity that does not necessarily have to take place within the employee's own four walls. The regulations and further details are usually contained in works agreements or individual agreements.

In practice, such certificates can take many different forms. It can be a pure recommendation or a statement of urgent necessity by the doctor. The form is also not standardised: it can be written in the form of a letter or on forms for prescriptions or certificates of incapacity for work. What they all have in common, however, is that the employee is not (completely) unfit for work. In contrast to the employee's incapacity for work certified by a doctor, neither the obligation to pay benefits nor the employee's ability to work is cancelled as a result of a "home office certificate". Accordingly, the employer's obligation to pay remuneration remains unchanged. The employee's ability to work is modified — by the attending physician — in that it is linked to the existence of certain external working conditions. 

The reasons — why a certificate is issued at all — can be varied. For example, stress is cited in connection with travelling to work or working in the office. This may be the case if work cannot be carried out at the regular workplace or the journey to work cannot be made without endangering health, in particular if there is a risk of infection on public transport, or if the working environment in the employer's office does not allow stress-free work.

What makes the phenomenon of "home office certificates" so problematic?

In principle, the employer has the right to issue instructions to the employee within the scope of an employment relationship in accordance with Section 106 of the German Trade Regulation (Gewerbeordnung). This also includes the determination of working conditions and the place of work performance at the employer's reasonable discretion. The extent to which this is restricted by the "home office certificate" has not yet been clarified by the labour courts. This gives rise to a number of uncertainties for employers when dealing with this particular type of certificate. The main issue here is the fact that these certificates usually do not state a precise reason for the doctor's order to work from home. In addition, in some cases, the doctor does not provide any information about the duration of the "home office certificate", which makes it considerably more difficult for employers to plan. In contrast to a "normal" certificate of incapacity for work, where the employer regularly has no interest in the medical justification, these are of particular importance for the further procedure in the context of the home office arrangement. It is essential that the "home office certificates" do not have the high evidential value in court proceedings of certificates of incapacity for work. Without this basic information, the employer will not be able to exercise its discretion in determining the place of work, or will not be able to exercise it properly. As a result, the employer cannot assign the employee to another, possibly more suitable activity and cannot organise or reorganise the workplace in line with the employee's interests. It should be noted in this context that the employer's interest in information will generally be more worthy of protection than the employee's interest in withholding the relevant information.

Guidance for the parties to an employment contract: How do you behave correctly?

• In principle, the employer is free to determine the place of work at its reasonable discretion in accordance with Section 106 of the German Trade Regulation (Gewerbeordnung) without proof of the allegedly existing restrictions.
• Employers should obtain information about the working conditions on which a "home office certificate" from the employee or doctor is based in the form of a written statement. In any case, work from the home workplace (over a longer period of time) should not be permitted on the basis of "home office certificates" without further enquiry. In particular, it should be requested to state the working conditions that the doctor assumed when issuing the "home office certificate".
• There is no obligation for employees to release the doctor treating them from their duty of confidentiality. Furthermore, the employee cannot be obliged to be examined by the company doctor. Nevertheless, if there are reasonable doubts, the employee or doctor should be asked to provide information on the possibilities for adapting the working conditions.
• It is advisable to document the cessation of work activities in the office for evidence purposes.
• Sanctions may be imposed if the employee fails to comply with an effective instruction to work in the office. It makes sense to issue warnings for misconduct in order to enable further measures under labour law, up to and including dismissal for conduct-related reasons, if the employee repeatedly violates the employer's instructions.