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New legislation in accordance with the Labour Code

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The Labour Code is bringing us new legislation with effect from 1st March 2021, reflecting current needs of employers and employees in the form of more precise rules concerning working from home, resp. teleworking, which people commonly call the Home Office. 

The terms work from home / telework used in the Labour Code and home office are to some extent synonymous. At the same time, in practice, the differences between occasional and regular work from home are often blurred. The dividing criterion of the legal regulation, when it is considered domestic work / telework and when it is not, is the question of regularity of work outside the employer's workplace (if the performance is regular, it is domestic work / telework with its certain set of obligations). Regularity does not mean that domestic work must be carried out within the full set of weekly working hours. Domestic work (work from home / teleworking) can also be carried out to an agreed extent, which is part of the established weekly working time (e.g. one, two days a week). 

At the same time, the Labour Code stipulates a negative definition according to which, work from home or teleworking is not considered to be work performed by the employee in employee´s household occasionally or in exceptional circumstances with the employer's consent or after an agreement with the employer, provided that the type of work performed by the employee under the employment contract allows it.

The Labour Code divides domestic work into:

  • work from home,
  • teleworking, if the work is carried out using information technology in which electronic data transmission by distance takes place on a regular basis. 

Written agreement between the employee and the employer is required for the performance of domestic work or telework (it cannot be ordered unilaterally).

A household for the purpose of work from home and telework must be a place other than the employer's premises (premises set up by the employer). Under the new legislation this can be any place, including a place where the employee chooses where to work, if the nature of the work allows it (i.e, the arrangement will not include a specific place of work but a determination that the place of work is left to the employee). This also allows the so-called mobile telework and so-called digital nomads.

Another important change is that the employer and the employee can agree that during work from home or teleworking, the employee will schedule his / her working hours within the whole week or will be performing his / her work under flexible working hours.

If the employee schedules working hours himself during work from home or teleworking, his employment relationship is governed by the following deviations:

  • he / she is not a subject to the provisions on the organization of the specified weekly working time, uninterrupted daily rest, uninterrupted weekly rest and downtime,
  • in the event of an important personal obstacles at work, he is not entitled to wage compensation from the employer, except for the death of a family member,
  • does not include wages for overtime work, wage benefits for work on holidays, wages benefits for work on Saturdays, wages benefits for work on Sundays, wages benefits for night work and wage compensation for difficult work, unless the employee agrees with the employer otherwise.

At the same time, the new legislation imposes new obligations on employers who decide to agree with employees to work from home or to perform teleworking, especially in the form of the need for appropriate measures. The employer must provide the employee with the technical equipment and software necessary for the performance of telework, except in cases where the employee performing telework uses, in agreement with the employer, his own technical equipment and software. Likewise, the employer must think about the protection of data that is processed and used in teleworking, especially regarding the software.

The Labour Code also refers to the fact that with the performance of work from home or telework the employee also incurs increased costs associated with the use of own tools, equipment and own items, which can be reimbursed by prior written agreement and from a legal point of view such costs are not considered part of the wage.

The new legislation introduces, as part of obligations of an employee performing work from home and teleworking, to immediately inform the employer about technical problems related to the malfunction of hardware and software or about the malfunction of the Internet connection, which prevent him from performing work.

The Labour Code also sets out the principle of non-disadvantage (i.e. discrimination of this employee) in comparison with a comparable employee at the employer's workplace, resp. the principle of non-advantage (i.e. discrimination against employees in the employer's workplace). An important part of the new legislation is also the establishment of a principle of the possibility to "disconnect yourself". This means that an employee at home may not be available to a supervisor at any time. He has the right to continuous rest, during which he does not have to use work equipment. Of course, this must not be at a time when he is on on-call duty or overtime.

We consider the legal regulation of domestic work and telework to be a step in the right direction, while we are ready to provide our clients with legal assistance in its implementation into practical use.

Author:

Mgr. Pavel Legát, advokát