Czech Republic: The Rise of Home Office as a Reaction to COVID-19 Pandemic and its regulation under Czech Labour Law
The unexpected situation regarding the COVID-19 pandemic has brought the need for a quick response in many areas of law, especially labour law, where not only businesses themselves but more importantly employees' health must be protected.
It is important to differentiate between home office as a benefit for employees, and performing work from home which is asked of employees by their employer. In the first case, such a benefit may be introduced by an internal regulation, which stipulates the conditions for performing work from home for employees without concluding any individual agreement with the employee, which in contrast is necessary in the second case. However, in both cases, it is crucial to take into consideration the following aspects:
Location of the workplace
Under Czech labour law, fixing the place of work is an indispensable part of any employment agreement. The place of work can normally be stipulated only as wide as a certain municipality (e.g. where the employer´s business premises are located). Therefore, should the employee live and therefore perform work outside the place of work agreed upon in the employment agreement, an amendment to the employment agreement extending the place of work has to be concluded. In addition, the range of places the employee is allowed to perform work at needs to be contemplated, i.e. is the employee supposed to work from his/her home as the only, precisely defined workplace place, or should he/she be given more freedom and allowed to work from any place the/she chooses.
Closely connected with the location of the workplace is the topic of workplace safety. Despite the fact that the employee works from home, he still performs work for the employer, albeit outside the employer's premises. The Czech Labour Code does not provide any exceptions for working from home in this respect, thus the employer is still responsible for ensuring health and safety at work, i.e. the employer is liable for accidents at work as well as occupational diseases if they occur during work or in close connection with it. This applies even though the working conditions and environment at the employee's home cannot be controlled without the employee’s consent. Therefore, the employer should consider taking measures such as educating employees about the risks associated with the performance of work from home, about the appropriate organization and setting-up of the workplace and work environment, and further agree with the employee on as many obligations as possible as well as draw up a written record of the fact that the employer has trained the employee on the risks related to the performance of work from home for documentation purposes. On the other hand, according to judicial case law, the employee bears the burden of proof for the fact, that the workplace accident occurred during work or in close connection with it.
Costs of home office
One of the fundamental attributes of dependent work is that it is performed at the expense of the employer, which also applies to home offices, i.e. the employer is in principle obliged to pay the employee's costs associated with the performance of work from home. However, in order for the employee to be entitled to reimbursement of any costs from the employer, he must quantify and document them, which may be problematic, if not impossible. For this reason, most employers choose to cover the costs with a lump sum.
Dealing with the shortcomings of the current employment law
In the Czech Republic, the entire legal regulation of work outside the employer's business premises is currently covered by just one short section of the Labour Code and is also outdated. The current pandemic situation has shown that the current statutory law is insufficient and will need to be improved and updated to modern needs. Possible amendments regarding home office are already being discussed in professional legal circles, but no official legislation has yet been proposed.
Current law only applies to situations where employees schedule their work themselves, which is inconvenient for employers and inapplicable in most cases such as during the current situation, since employers often need to be able to assign work to employees and communicate with them during designated working hours, which the current law does not provide for. Currently, employers should therefore either conclude a separate agreement on home office with the employee or at least an amendment to the existing employment agreement, or try to make changes to the collective agreement (if in place) in order to thoroughly cover all aforementioned aspects, especially the rights and obligations of both parties.
UEPA advokáti s.r.o.