Draft bill on mobile working stopped

In the coalition agreement, the governing coalition agreed to promote mobile working. This fulfills an obligation from an EU directive, which must be implemented by 2022. A draft bill from the SPD-led Ministry of Labor that has now been submitted to the Chancellery was stopped without further ado. However, this does not put an end to the discussion - if only because of the obligation to implement the EU directive.

What is the draft bill about?

This draft bill provides for the following points:

• Introduction of an individually enforceable right of the employee to mobile working at least 24 days a year
• This is accompanied by an obligation to record working hours in the context of mobile working
• An extension of the works council's right of co-determination
• Adaptation of the employer's pension obligations and adaptation of accident insurance to the circumstances of mobile working, in particular working from home.

What is mobile work

The term "mobile work" should be legally defined by the planned law. Accordingly, this refers to the performance of work outside the existing business premises. This can take place at a location that the employee chooses themselves or that is firmly agreed with the employer. The most well-known example is the home office.

Why the draft bill was stopped

The draft law was stopped because it goes beyond both the agreements in the coalition agreement and the requirements of the EU directive still to be implemented.

The employee's claim enforceable under individual law

According to the draft bill, employees are to receive an enforceable entitlement to at least 24 working days of mobile work. As in the Federal Leave Act, this corresponds to a total of 4 working weeks per year.

The employee only has to apply for mobile working in text form three months before the desired start date. An email is sufficient for this. According to the planned new provision of Section 111 (2) sentence 3 GewO-E, the employer may only reject this request if the activity is not suitable for mobile working or if there are operational reasons to the contrary. In the event of a dispute, the burden of proof lies with the employer.

The employer must also provide the employee with detailed reasons for the refusal. If he does not comply with his obligation to provide reasons, for example by ignoring the request, the mobile work is deemed to have been agreed on the requested date.

This point in particular is causing disagreement in the Chancellery. The coalition agreement only provided for a right to information for employees in the event of a negative decision by the employer. This also goes beyond the EU Directive, as the latter only provides for such a right for employees with children or relatives requiring care.

Obligation to record working hours

In addition, according to the new Section 112 GewO-E, the obligation to correctly record working hours should remain with the employer despite mobile working. This appears problematic, as it is not possible for the employer to check this. To make matters worse, there is also the threat of fines for employers in the event of infringements, which should not be underestimated.

Extension of the works council's right of co-determination

The works council's right of co-determination is also to be expanded. The new Section 87 (1) No. 14 BetrVG to be introduced provides the works council with an enforceable right of co-determination regarding the introduction and organization of mobile work. This gives the works council a position of power vis-à-vis the employer that should not be underestimated.

Extension of the employer's pension obligations

Ultimately, the employer is also required to take appropriate accident prevention measures for its employees in mobile work. This may seem less problematic in the context of workplaces that can be inspected by the employer. However, in the case of mobile work sites that are not accessible to the employer, this appears problematic.

Ultimately, the employer's options are limited, for example, to providing appropriate training, in particular on the ergonomic requirements of a healthy workplace and the provision of appropriate work equipment.

Draft bill stopped - discussion still open

The draft bill was immediately stopped by the Chancellery. However, the discussion on the topic of mobile working remains open. However, the EU directive on work-life balance for parents and family carers, which has yet to be implemented, is forcing the government's hand. A corresponding law must be created by 2022. In this context, the points already contained in the draft bill will certainly be up for discussion again.