HOME OFFICE REGULATION IN THE FORTHCOMING AMENDMENT TO THE LABOUR CODE
HOME OFFICE REGULATION IN THE FORTHCOMING AMENDMENT TO THE LABOUR CODE
The possibility and conditions of remote work, or teleworking, are to be regulated in the forthcoming amendment to the Labour Code, which intends to implement the Directive of the European Parliament and of the Council on work-life balance for parents and carers. The draft amendment to the Labour Code has been submitted by the Ministry of Labour and Social Affairs, whereas the so-called comment procedure on the draft has already been closed and the draft amendment is expected to be submitted to the Chamber of Deputies. The deadline for transposition of the aforementioned directive has already passed on 2 August 2022, it can therefore be expected that the adoption of the act will become a priority in order to ensure compliance with the European regulation as soon as possible. Although the draft amendment is still in the early stages of the legislative process, we consider it important to monitor the upcoming changes and proposed aspects of teleworking addressed in the proposed amendment now.
According to the draft amendment, remote work should be regulated by Section 317 of the Labour Code. Performance of work from a place different from the employer's workplace will be possible on the basis of a written agreement between the employee and the employer. The employer would further be able to order the employee to perform work remotely in writing in accordance with Section 317(4), if so provided by a measure of a public authority adopted pursuant another act. The newly proposed right of the employer to order remote work appears to be in response to the situation that arose in the context of the COVID-19 pandemic, where many employers were forced to temporarily close their workplaces and give priority to remote work (where possible).
As opposed to the act amendment proposal, the current regulation of the Labour Code explicitly regulates the conditions of remote work only for employees who schedule their own working hours themselves. The new regulation is therefore welcomed, as the rights and obligations when working from home are now only derived from the general regulation.
The draft amendment provides that the written remote work agreement will have to include:
(a) the place or places of remote work;
(b) the method of communication between the employee and the employer, the method of assigning work and its control;
(c) the scope of the remote work to be carried out and the detailed conditions for the allocation of working time;
(d) the method of reimbursement of costs incurred in the performance of remote work;
(e) the period for which the remote work agreement is concluded; and
(f) the manner in which occupational safety and health is ensured by the employer, including its control, and the possibility for the employer to enter the place of work in order to clarify the cause and circumstances of the occupational accident.
The Explanatory Memorandum to paragraph (f) of the proposed amendment above states that it would be necessary “for the employer and the employee to agree on the possibility of the employer or a person authorised by the employer entering the place of work in the dwelling for the purpose of clarifying the cause and circumstances of the work accident. The employer's entry into the dwelling would involve the presence of the employee, if the employee's medical condition permitted, witnesses and the presence of the trade union and the occupational health and safety representative.” The present proposal does not lay down any rules or conditions and it seems that the question of the rules for the conduct of the inspection of the place of work by the employer will be left to the agreement between the employee and the employer.
It follows from the foregoing that the performance of remote work would not relieve the employer of the obligation to ensure safety and health protection of the employee, the employer would also be obliged to pay the costs incurred by the employee in performing of remote work (similarly to the current interpretation of the existing legislation). The employee's costs would not be included in the wage, salary or remuneration. The anticipated wording of Subsection 7 of the respective provision proposes a lump sum of CZK 2.80 for each hour of work, which the employer is obliged to provide to the employee as compensation for the costs of gas, electricity, fuel, heat, water, etc., whereas a higher lump sum may be provided to an employee in the private sector. If the amendment is adopted, the amount of the lump sum will be amended by the Ministry of Labour and Social Affairs by decree on a regular basis, always starting from 1 January of the calendar year, or, on an exceptional basis if there is an increase or decrease of at least 20 % in the average cost compared to the lump sum last contained in the law or decree.
Special conditions for certain groups of employees
In the context of remote work, attention should also be drawn to the proposed obligation of the employer under Section 241(3), whereby the employer should be obliged to comply with a written request for the approval of remote working raised by an employee caring for a child under 15 years of age, by a pregnant employee or by an employee who proves that he or she is predominantly caring for a person dependent on the assistance of another person for a long period of time, unless serious operational reasons or the nature of the work performed prevent such approval. If the request is not granted, the employer will have to give reasons in writing for such refusal. According to the proposed Section 317(11), other employees will also be able to request the ability to telework, and again, if the request is not granted, the employer will have to provide written reasons for the refusal.
Other obligations of the employer and of the employee and the way to terminate remote work
The draft amendment also establishes the employer's obligation to provide any technical and software equipment necessary for the performance of the employee's work unless the employee performs the work using his/her own equipment; furthermore, the employer should provide the necessary software equipment in connection with the protection of data during the remote transmission of such data between the employer and the employee. In return, the employee will be explicitly obliged to act in such a way as to protect data related to the performance of his work.
If the proposed amendment is adopted, the employer and the employee will be able to terminate the remote work agreement by written agreement or, alternatively, either party may terminate it in writing for any reason or for no reason with 15 days' notice, with the exception of remote work agreements concluded pursuant to the proposed Section 241(3) (employees caring for a child under 15 years of age, pregnant employees and carers), which may be terminated by the employer only for serious operational reasons or if the nature of the work performed does not allow remote work (any more).
The amendment to the Labour Code brings a long-awaited regulation of the conditions for performing work outside the employer's workplace and legal certainty for employees in the form of clearly defined obligations of the employer. We will continue to monitor whether and in what form the amendment will eventually be adopted and will keep you informed of further developments.
 Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU