What occupational health and safety requirements apply to home office working?

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Occupational health and safety regulations must be observed when working from home. However, a requirement to carry out a risk assessment (Gefährdungsbeurteilungen) of a home office is not specified in law. The Federal Government has highlighted in its answer (BT Ds. 20/9982) to a Kleine Anfrage (small question) from the Left Party that the employer is dependent on the cooperation of the employees when carrying out a risk assessment.

The Occupational Health and Safety Act stipulates that the employer must carry out a risk assessment to determine the hazards associated with an employee's work and take corresponding occupational health and safety measures. There are no special regulations for working from home (as opposed to teleworking) in the Occupational Health and Safety Act. However, regular work in a home office requires a risk assessment in order to ensure compliance with the statutory occupational health and safety requirements.

The special features of working from home must be taken into account in the risk assessment. In the event that the employer has not been granted a contractual right of access to the employee’s premises, the employer's obligations to carry out the risk assessment are limited. As the German government states in its answer to the Kleine Anfrage from the (now dissolved) left-wing parliamentary group, the employer is dependent on the cooperation of the employee. A risk assessment is possible, for example, if the employee completes a checklist or answers a questionnaire from the employer. The employer may rely on this information as long as it is free of contradictions and obvious inaccuracies. Another prerequisite for a reliable risk assessment is that the employer has informed the employee in advance about the relevant occupational health and safety regulations. This is because, on the basis of this information and instruction, the employee knows what to look out for and can answer the employer's questions correctly. The results of the risk assessment should be documented by the employer, who should take any necessary occupational health and safety measures.

The works council should play a role in this risk assessment process insofar as it has a right of co-determination with regard to the design of general rules for carrying out risk assessments. However, implementation of a risk assessment in each individual case is not subject to co-determination.

Takeaway for employers

The Federal Government's response is to be welcomed, as it highlights employees' obligations to cooperate in the context of occupational health and safety at home. Although employers are responsible for occupational health and safety in a home office, they can transfer responsibility for any aspect which is beyond their direct control to the employees provided they carry out a risk assessment based on the information provided by the employees. They may rely on this information, provided that it is consistent and reliable as described above.