Home office legislative package – the big hit did not materialize
With the Covid-19 pandemic, working from home has gained massively in importance. Couple of days ago, the draft of the previously announced new legal regulation on remote working was published. The legislative package essentially contains specific clarifications and specifications as well as certain tax relief. However, the big hit did not materialize.
Changes in labor law
As before, the prerequisite for working from home is an agreement between the employer and the employee. According to the draft, this agreement must be concluded in writing. However, according to the materials even an oral agreement will not be rendered invalid. There does not exist a right of the employee to work from home or a right of the employer to order an employee to work from home. The home office agreement can be terminated by either party with one month’s notice if there is an important reason. An important reason may be substantial changes in the operational requirements or significant changes in the employee’s living situation that no longer allow working from home.
It was made clear that the employer is essentially obliged to provide the employee with any digital work equipment that may be required for regular work in the home office. If this work equipment is not made available, the employee is entitled to reimbursement of costs (lump sum). The framework conditions for working from home can now also be concluded in a works agreement.
The new “Home Office Act” explicitly stipulates that employee protection provisions also apply in principle to home offices, but the labor inspectorate is not authorized to enter private homes of an employee working from home without the employee’s consent.
Changes in social law
The clarification introduced with the 3rd COVID-19 Act according to which accidents that happen in the home office are considered occupational accidents has also been included in the new home office law.
Changes in tax law
Under tax law the new provisions bring a few “treats”: If the employer provides his employee with digital work equipment (e.g. computer, screen, keyboard, printer, mobile phone or the necessary data connection), this does not constitute a taxable benefit in kind for the employee. Payments by employers to compensate for the costs of working from home will be paid for a maximum of 100 days per calendar year in the amount of up to € 3 per home office day (= max. € 300 per year) as a tax-free working-from-home lump sum. Moreover, the number of home office days must be recorded in the payroll account. In addition, the amount of the working-from-home lump sum is to be made evident in the payroll account.
If the maximum amount of the home office lump sum is not fully utilized in the payment of the employer, the employee can claim work related deductions and additional expenses for the ergonomic furnishing of their workplace at home (desk, swivel chair, lighting) up to an amount of € 300.00 per year as income-related expenses. The prerequisite for this is that at least 42 days a year were worked exclusively from home. If the employee has borne higher equipment costs, it will be possible to take the excess amount into account until 2023 (the last year in which the regulation applies). The requirement to work from home for at least 42 days must be assessed separately for each assessment year. If these 42 home office days per calendar year are not reached, the tax advantage does not apply.
Employee representatives criticized, among other things, that this rigid regulation leads to unfair results if the required number of home office days is not achieved due to long sick leave or pregnancy. In this context, however, other questions also arise: For example, it is unclear what happens if an employee makes a purchase in anticipation of tax benefits, but the employer shortly thereafter terminates the home office agreement for operational reasons, for example. A legal clarification would be needed here.
The regulations will come into force on April 1st, 2021 and end in 2023 in order to then be evaluated.
This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.
19. February 2021
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