Homeoffice during the pandemic
6 April 2021
Is home office mandatory?
Following the 15th organisation directive, we have heard from a number of employees that, in contrast to other institutions, the order-like request to work from home has led to some confusion with regard to the legal basis of such instructions and to conflict situations between employees and their superiors. We, as the staff council, therefore see it as our duty here to shed light on the legal situation, without weakening the urgent recommendation to work from home where possible.
Neither the Corona Occupational Health and Safety Ordinance [Corona-Arbeitsschutzverordnung], on the basis of which the management department [Dienststelle] is obliged to offer the opportunity to work from home to the greatest possible extent, nor the Hamburg Containment Ordinance [SARS-CoV-2-Eindämmungsverordnung] standardizes an obligation of the employee to avail of the offer to work from home. The employer cannot therefore require employees to work from home. On the contrary, working from home is linked to the consent of the employee. This is expressly emphasized by the legislator in the explanatory memorandum on the Corona Occupational Safety and Health Ordinance [Corona-Arbeitsschutzverordnung].
A written agreement that could allow deviations from this does not exist at the University of Hamburg. In this respect, the staff council is of the opinion that the obligation formulated in the organisation directive to present indispensable or compelling reasons for working in attendance at the university deviates from the requirements of the legislature. It is not the employee’s duty to present reasons the validity of which the superior would have to adjudicate on without any given stipulations. She/he has rather the right, but not the obligation, to accept the offer of working from home from her/his employer. For employees who cannot or would not like to use this possibility, it must of course be possible – under strict adherence to the appropriate health and safety and hygiene measures – to pursue their professional obligations on the premises of the university.
Fighting the pandemic does not constitute grounds for obliging employees to work at home or for urging them to provide information relating to the most personal areas of their lives for reasons of ‘urgency’. Independent of these objections, the staff council supports the aim of the management department to motivate as many employees as possible to work from home and also to find a consensual solution to problems related hereto which may arise between employees, superiors and the management department. Accordingly, we would like to call on all those affected to report to the staff council in the event of uncertainties or a dispute.