The ABCs of Teleworking for the Employer

Teleworking is an increasingly common form of work, the rapid growth of which has been largely driven by necessity during the COVID-19 crisis. As a longer-term trend, the increase in the share of telework has been facilitated by better opportunities related to the development of technology and the general growth in the popularity of flexible forms of work.

Teleworking means that, in agreement with the employer, the employee carries out his or her work, which he or she would normally do in the employer’s company, using information and communication technology tools outside the employer’s company, e.g. the employee’s home.

There are a number of important legal nuances regarding teleworking that an employer should take into account.

When can an employee work remotely?

An employee may perform telework if the employer and the employee have agreed thereto. According to the law, it is not possible for an employer to force an employee to work from home, and an employee cannot work from home office without the employer’s consent.

The telework agreement must be in writing and could be either included in the employment agreement or as a separate agreement. However, before allowing an employee to telework, the employer should have assessed the risks involved therein.

How to ensure a safe working environment?

In the case of teleworking, the employer is still responsible for the employee’s occupational health and safety and must carry out a risk assessment to map the risks associated with teleworking. To carry out the risk assessment and instruct the employee in occupational health and safety, the employer needs to know where the employee teleworks.

Thus, in the case of teleworking, it is not enough to agree on the place of work with the precision of the local government, but the place of work should be defined even more precisely, for example, that the employee works remotely from his or her home.

When working on a computer, risks must be assessed and the employee must be instructed, among other things, in relation to an ergonomic workplace and working position, but also, it is important to assess and mitigate the effects of telework on the employee’s mental health.

One way of informing and instructing the employees is to establish a procedure for teleworking in work organization rules or in a separate document, which is introduced to the employee when starting work and/or before commencing telework. Requirements and recommendations for the employee for setting up a place for teleworking at the employee’s home can be added to the teleworking procedure.

Understandably, it is more difficult for the employer to check and ensure that the place of work meets the occupational health and safety requirements when the employee is teleworking – how is the workspace, lighting, temperature, desk and chair, screen, etc.

The employee must cooperate with the employer in creating and maintaining a safe working environment, but the employer can limit its liability only if it has done reasonably everything in its power to ensure occupational safety and health.

If the employer is in no way able to ascertain the safety of the employee’s place of telework or if the employer knows that the employee’s place of telework is not safe, the employer should not allow the employee to telework.

Who bears the costs?

As a general rule, the costs of creating and maintaining an employee’s workplace are borne by the employer. The same applies to employees who moved to the home office in agreement with the employer during the COVID-19 crisis, nevertheless, reimbursements are still subject to agreement between the employer and the employee and based on the principle of reasonableness.

If the employer has decided that it is necessary or best for the employees to work from the home office to prevent the spread of COVID-19 and the employees agree to work from home, the employer must provide the employees with the necessary tools to work from home.

The employer may allow the employees to use the employer’s work equipment at home or reimburse reasonable expenses for work equipment incurred by the employee in agreement with the employer. In addition to work equipment (computer, desk, ergonomic chair, etc.), other costs related to working from the home office may also be reimbursed, such as a reasonable proportion of internet or utility costs. When reimbursing expenses, it is also important to think about possible tax implications.

It would be advisable to address the issue of the use of work equipment and reimbursement of expenses in a telework agreement and/or the procedure for teleworking, specifying, among other things, which tools and for how long the employee may take home, what kind of expenses and based on which documents the employer is willing to reimburse.

This helps to prevent situations where the employer receives an unexpected claim from the employee for reimbursement of expenses or where the employer does not have an overview of which work equipment is used by the employees at home. The principle that the employer must provide the employee with one workplace at the employer’s own expense – be it in the office or at the employee’s home, must also be considered.

How to ensure the protection of personal data processed by the employee in the performance of his / her duties?

If an employee processes personal data to perform his/her duties, the employer should necessarily inform the employee of the personal data processing procedure by setting out the requirements regarding the processing of personal data for example in the rules of work organization.

When enabling teleworking, the employer needs to think through the additional risks to data processing arising from teleworking and how to manage and mitigate them and instruct the employee accordingly.

It is the employer’s responsibility to ensure the lawful and secure processing of personal data also in a situation where the employee responds to the customer’s e-mails, for example in a café, or works on paper documents containing personal data at home.

To ensure the protection of personal data, the employer may, for example, require the employee to use only the work computer provided by the employer and not the employee’s personal computer. The employer may also restrict the places where the employee may telework or process personal data, for example by stipulating that certain highly sensitive personal data may not be processed by employees outside the employer’s company.

The employer may also stipulate that the employee must refrain from working in a public place without a screen cover, using public networks without using a VPN (a virtual private network), and keeping documents containing confidential information and/or personal data on paper at the place of telework.

The employer must keep in mind, however, that the above helps to reduce the risk of data processing violations but does not limit the employer’s liability as a data processor. Therefore, it is important that the employer obliges and encourages the employees to notify the employer also of any minor personal data breaches.

In conclusion, to enable teleworking, the employer must assess the additional risks arising from teleworking, establish clear rules for teleworking, agree with the employee on teleworking in writing and instruct the employee therein.

Usually, for instructing the employees, the rules of work organization and the instructions regarding the processing of personal data are supplemented by adding information concerning teleworking.

However, the employer may notify and agree with the employees in another way more suitable for its company, considering the need to be able to prove and retain relevant documentation.

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