Home office will continue to be a matter for agreement between employer and employee from April 1, 2021. There is no legal entitlement to home office and it cannot be ordered unilaterally. In companies with a works council, framework conditions for home office can be defined at the company level in a works agreement, which form the basis for the absolutely necessary individual agreements pursuant to § 18c AVRAG. The agreement should be concluded in writing in the interest of both parties and can be revoked by either party to the employment contract with one month’s notice if there are important reasons.
The definition of home office states that it is regular work performed by an employee at his or her private residence (primary or secondary residence) or at the residence of a close relative (e.g. life partner). Working outside of the home or outside of a company’s premises, such as in a park, in a coffee house, on vacation, on a train, in a coworking space (teleworking, mobile working), is not included.
The most important points of the home office agreement:
- Data protection and confidentiality
- Ensuring availability (e-mail, telephone)
- Provision of work equipment
- Employee protection regulations
- Cost absorption
- Working hours
- Home office vs. office days
- Determination of a specific place of work (in the case of home office abroad – consideration of social security jurisdiction and the respective tax regulations / double taxation agreements, accessibility, Internet connection)
- Liability for damages (§ 2 para. 4 of the Employee Liability Act DHG also applies to damages caused by relatives in the common household or by animals living in the household)
- Termination option (in addition to the termination option for good cause, a time limit or termination without good cause is also permissible)
What tax advantages does the Home Office Act offer?
- Digital work equipment: It is enshrined in law (§ 2h para. 3 AVRAG) that the employer must provide digital work equipment such as laptops, printers and cell phones. However, this is not a taxable benefit in kind – even if the digital work equipment may be used privately. However, it can be agreed that digital work equipment is provided by the employee and that the employer pays an appropriate reimbursement of costs. (matter of agreement)
- Home office lump sum: Payments by the employer to compensate for additional costs in the home office will be tax-free up to EUR 300 per year (EUR 3 per day for a maximum of 100 days) retroactively from January 2021. In principle, it is also possible to calculate a fixed monthly amount, e.g. € 25 per month from January to December. However, at the end of the year at the latest, a check must be carried out to ensure that only the home office days actually worked were left tax-free. If the payments made by the employer exceed the amount of € 300 per calendar year, this constitutes an income subject to SI and tax. Payments made by the employer in connection with the home office in 2020 remain subject to tax – unless they were titled as Corona allowance.
- Differential advertising costs: If, on the other hand, the employer does not use up the lump sum of € 300 or does not use it up in full, the difference can be claimed in the employee tax assessment. (no receipts required) However, this requires appropriate proof: the home office days must appear on the payroll accounts and annual pay slips – regardless of whether the employer pays a home office lump sum or not. For the first six months of 2021, an estimate may also be made in lieu of accurate records .After the Home Office Act is published, software providers will undertake the necessary programming to be able to record home office days. Service members must show their home office days in their time and attendance records. A home office day is any workday on which the activity is performed exclusively in the home. (If, on the other hand, half a day is worked in the office and the second half in the home office, a commuter allowance may have to be claimed for this. In addition to the lump sum, employees can deduct up to EUR 300 per year as income-related expenses for the purchase of ergonomically suitable furniture, e.g. their own desk or office chair, in the course of their employee tax assessment. For the year 2020, the purchase of ergonomic furniture can be claimed with up to € 150 in the employee tax assessment. In this case, however, only the difference of € 150 is deductible as income-related expenses in 2021. (receipts required)
For the time being, the regulation is limited until 2023 and is to be evaluated in 2022.
The home office allowance of € 300 per calendar year is exempt from all ancillary wage costs (wage tax, municipal tax, etc.).
Employers are also liable under administrative penal law in the home office for keeping working time records and for compliance with working time limits (daily and weekly maximum limits, rest breaks and rest periods).
In individual agreements, it is not mandatory to provide equal compensation for home office to all employees.
There is no legal provision that regulates travel between the workplace and the home office under labor law. According to the prevailing legal opinion, the following applies – whereby special provisions in the applicable collective bargaining agreement must be taken into account:
- Trips on agreed “office days” are considered free time without reimbursement of costs.
- In the case of an official order on a previously agreed “home office day”, the trip is to be assessed as official – working time and reimbursement of travel costs.
Accidents in the home office have already been considered occupational accidents since the temporary special regulation in the General Social Security Act – regardless of whether one has a demarcated workroom or not. However, these accidents must be temporally and causally related to the activity in the home office. For insurance reasons, it is therefore advisable to keep accurate records of working hours and not just to record working hours in balances.
Labor inspectors are not granted access to private living quarters.
If employees receive € 300 each as tax-free home office allowances from several employers, this triggers a mandatory assessment. However, it is not relevant for the respective employer.
If employees with whom a home office has been agreed are officially segregated as contact persons (K1) without health complaints, they are obliged to perform work. However, if the service user falls ill and there is a doctor’s sick note, there is also no obligation to work in the home office.
According to the Federal Ministry of Finance, meal vouchers can also be issued tax-free for home office days.
PS: Please note, that we are no native speakers and that our blogposts were translated with the help of google translate.