Friday Feb 03, 2023

Home office during the pandemic: recommendation or duty? Challenges? – Lexology

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After the home office obligation had been lifted for a short period of time, the Federal Council decided to reintroduce a home office obligation, due to the worsening of the epidemiological situation in November and December 2021. However, the home office requirement could likely be repealed as early as Feb. 3, 2022.

Questions and Answers regarding the most widespread word in professional life these days

After the home office obligation had been lifted last summer, the Federal Council decided due to the worsening of the epidemiological situation in November and December 2021, to reintroduce a home office obligation.

In many industries, home office was not very common before the outbreak of COVID-19, in others it is simply impossible. Many questions arise for almost all employers and employees when it comes to home office. We herewith try to answer the most important ones.

Q: Does an employer have to enable home office for all employees?

A: Since December 20, 2021, there is a general obligation to enable employees to work from home again. This applies insofar as it is possible due to the nature of the activity and feasible with reasonable effort. To this end, employers must take the appropriate organisational and technical measures.

Q: Can an employer oblige employees to work from home?

A: Often the employment contract provides for a clearly defined place of work. The employer cannot simply change the work location without the employee’s consent and thus cannot unilaterally impose on the employee to work from home. However, during the continuation of the special situation, employees are obliged again to comply with the instruction to work in home office due to the new ordinance of the Federal Council, if there are no special circumstances against it.

Q: What equipment must the employer provide to employees for home office?

A: The following general rule applies: The employer is obliged to provide the employee with the equipment and material necessary for working from home, provided that working remote was forced upon the employee and unless agreed otherwise or usual. If, in agreement with the employer, the employees themselves provide equipment or material for the performance of the work in the arranged home office, they are to be adequately compensated by the employer. However, it can also be agreed that the employee shall bear these costs himself.

Q: Does the employer have to reimburse the employee for costs incurred in connection with home office?

A: With regard to the bearing of costs, a distinction must be made between work equipment and material on the one hand and expenses on the other. Work equipment is usually not significantly altered by its proper use (when working from home this may include for instance smartphones, monitors, computers, office furniture etc.). Their procurement usually represents a onetime financial expenditure. On the other hand, material is defined as the substance to be processed or worked on by the employee, which must be replaced on a regular basis (e.g. printer cartridges, paper). It is possible that the parties mutually agree that the employee must provide equipment and material and must also pay for the corresponding costs (Art. 327 CO).

Finally, expenses are costs which the employee incurs in the interest of the employer. They are directly related to and necessary for the performance of work. They may include, for example, telephone costs, fees for software licenses …….

Source: https://www.lexology.com/library/detail.aspx?g=ddd50994-8fa6-4f27-b085-9d8cac22f3e8

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