New legal framework for home office
During the pandemic, home office (working from home) became the new standard routine for employees and is expected to remain a permanent legacy of the crisis. Moreover, working from home is a European or even global trend. In many cases employees and employers are located in different countries and therefore there have been increases in both the frequency of cross-border working from home and so-called virtual labor mobility. Undoubtedly, there is also a new trend toward increasing offers of exclusively virtual jobs performed from home, which significantly expands the pool of eligible candidates as well as the scope of related labor law and tax challenges.
An amendment to the Labor Code (LC)2, effective as of 1 March 2021, introduces important changes to the legal framework of home office to the Slovak legislation, which we explain in this article (for further changes, please see our article, Selected News in the Labor Code).
The new rules clarify the terms “regular “and “occasional” work from home as follows:
- Regular work from home - “home work” and “telework”, when it is agreed in the employment contract that the employee will perform work duties from home to the extent of the established weekly working time or a part thereof.
- Occasional work from home - which the employee performs from home occasionally or in exceptional circumstances with the consent of the employer or upon agreement with the employer.
In both cases, the nature of work must enable its performance from home. The key difference between regular and occasional work from home is its regularity. Regular work from home will apply not only when the employee works exclusively from home, but also when the employee regularly works from home for only two or three days a week. Assessing whether work from home is regular or occasional can be challenging. However, it has a significant impact on determining the rights and obligations of both the employer and the employee.
The amendment brings more flexibility to the organization of regular work from home. Previously, an employee regularly working from home was always authorized to schedule their working hours themselves, whereas the amendment grants this right also to the employer. However, if the employer decides to schedule the employee’s working hours, they must record working time and pay the employee wages for overtime work, wage benefits for work on Saturdays, Sundays and holidays and compensation of wages in the event of significant personal obstacles at work. The employer must also put in place an appropriate method of recording working time, while notifying employees in advance of any monitoring mechanisms.
In establishing other appropriate measures to enable regular work from home, the employer must also:
- Provide, install and maintain the hardware and software equipment necessary for the performance of work, except for cases where the employee uses their own equipment with the employer’s approval
- Ensure the protection of data that is processed and used at work
- Reimburse any provable increased expenses of the employee associated with the use of the employee’s own equipment necessary for the performance of work
- Inform the employee of any restrictions on the use of hardware and software, as well as the consequences of violating these restrictions
In cases of regular work from home, the employer must provide the employee with a computer (including an external monitor, mouse and keyboard), unless they agree to use the employee's own equipment; and reimburse some expenses (e. g. fast internet connection).
In the case of both regular and occasional work from home, an employee's right to "disconnect" is introduced, which entails the right not to perform work outside working hours (with the exception of overtime and on-call time), during obstacles at work and holidays. Furthermore, during regular and occasional work from home, employees are obliged to immediately report to the employer any technical problems that may have an impact on their work. The law also explicitly enshrines the prohibition of discrimination. It is not permissible to give special advantages to employees carrying out regular and occasional work from home (e.g., by providing special "home office" bonuses), neither to disadvantage them compared to workers based at the employer's premises.
In addition to the above provisions and other special provisions defined by law, standard provisions of the Labor Code (e.g., provisions on wages, holidays, working hours or meals for employees) generally apply to work from home.
Despite the term "work from home", the place of actual work does not have to be the employee's home. It can be any place other than the employer's workplace, the choice of which can be left to the employee (including co-working areas). It does not even have to be a single permanent place. However, if the place of work is abroad, this can cause additional legal (risk of applicability of foreign labor law) and tax issues, which need to be carefully considered. Such cross-border work from home is relevant, for example, for Slovak employees residing in the border regions of Austria, the Czech Republic and Hungary.
The amended legal framework for home office will also apply to standard cases in a non-pandemic period. Moreover, special pandemic provisions of Sec. 250b (2) Labor Code apply, authorizing the employer to unilaterally order an employee to work from home and the employee to unilaterally switch to work from home. (Work from home during the pandemic situation should be considered work under special circumstances and therefore as occasional work).
To do list
Bearing in mind the new legal framework, we recommend employers take the following steps when introducing work from home:
1. Identify groups of employees, for whom work from home is relevant and correctly classify employees working from home regularly and occasionally;
2. Identify groups of employees, for whom regular work from home is relevant and agree on its performance in the employment contract;
3. Identify groups of employees, for whom occasional work from home is relevant and regulate the conditions of its performance, for example in an internal regulation;
4. Govern practical issues of work from home in an internal regulation with a clear distinction of provisions applying to regular and occasional work from home. The adoption of an internal regulation is recommended not only by legal advisors, but also by the labor inspection authorities, mainly because work from home is a relatively new phenomenon and many issues are not regulated by law, even after the amendment. By adopting an internal regulation and by acquainting employees with its content, the employer can also comply with several obligations arising for them from the law, for example in the field of occupational safety and health or personal data protection. The internal regulation can address various conditions typical to work from home (e.g., reimbursement of expenses, health and safety, provision of work equipment, catering, protection of personal and company data, recording of working hours and monitoring of employees working from home).
If you are interested, we can assist you in implementing the steps outlined above. In particular, we can prepare amendments to employment contracts, which will introduce regular work from home, as well as an internal regulation tailored to your organization. In cooperation with our tax department, we can also explore the possibilities of establishing an optimal reimbursement scheme for employees’ actual expenses during work from home, from the income tax and social and health insurance perspectives. If your employees work from home in another country, we will also consider other implications arising from cross-border work from home, including obligations related to taxes, social security and applicable labor law. Through our EY international network, we can also ensure the assessment of legal and tax risks according to foreign law (e.g., the laws of Austria, the Czech Republic or Hungary).
Katarína Cangárová