(1) Is it possible for the employer to order the employees to work from home?
No, the employer cannot order home office, even in the current situation, when quarantine is declared and when working from home is recommended by the government. Employees must always give consent with working from home.
(2) What documents are necessary for the correct set up of home office?
We recommend to prepare an internal regulation and to conclude a home office agreement with each employee.
In the internal regulation, it is possible to set up the basic rules for home office, in particular
- Identifying positions where home office is applicable;
- Distribution of working hours and availability of the employee throughout the day;
- Basic rules for occupational health and safety protection when working from home;
- Communication with the team and work assignment.
What should the agreement cover? Mainly specification of a place (or more places) of work, specification of working hours, obligation of the employee that his home workplace is compliant with the OHS requirements (sufficient amount of light, occupational ergonomics) and the agreement on compensation of expenses spent for home working. The amount of compensation can be determined subsequently.
We recommend to prepare both documents at least in a simple form, even in situations when the company does not intend to continue using home office after the state of emergency.
(4) Who schedules working hours to employees while on home office? Can Section 317 of the Labour Code apply?
The basic rule is that working hours are scheduled by the employer, same rules apply for employees working from home. It is therefore up to the employer to choose a fixed scheduling of working hours or a more flexible option, e.g. a flexible scheduling of working hours containing sections of basic and optional working hours.
The employee and the employer can also agree on a fully flexible regime in which the employee schedules the working hours himself. This would be the regime pursuant to Section 317 of the Labour Code. This Section regulates the specific regime of so-called domestic workers who do not work at the employer’s workplace, schedule their own working hours and to whom apply some other specific rules. This regime is suitable for the type of work where the employee does not work in a team – a seamstress in the past, these days this type of work would be typically a sales representative.
For most employees, a standard regime, where the working hours are at least partially scheduled by the employer, is therefore more appropriate. Especially with regard to OSH requirements and practically – if an employee works in a team, he/she should be available at the same time as his/her colleagues.
(5) How to ensure OHS on home office?
When working from home, the employees should follow the same OHS rules as they do when working at the employer’s workplace. Specific OHS rules for home office should be covered by the internal regulation. In the agreement with each employee, we recommend determining the requirements for the employee’s workplace and its compliance with OHS. We also recommend to provide training for the employees regarding the specifics of OHS during home office e.g. by e-learning.
(6) Is it possible to order overtime work or being on call?
Yes, if the working hours are scheduled to the employee by the employer.
(7) What is the wage or salary during home office?
Same as during the work from the employer’s workplace. Employees are also entitled to a compensation of expenses spent for home working.
(8) Is it necessary to provide employees with compensation for the expenses incurred in connection with working from home?
The employer is obliged to provide compensation for expenses incurred to the employees in connection with the performance of work. Pursuant to the Labour Code, the employer may agree with the employee or determine by an internal regulation or individually in writing the conditions, amount and method of providing compensation for wear and tear of employee’s tools, equipment or other items necessary to perform work by the employee, based on which the compensation shall be provided.
(9) Are there any sanctions if the compensation of expenses incurred in connection with working from home is not provided?
The Act on Labour Inspection considers failure to provide compensation for expenses that the employee is entitled to in connection with the performance of work as an administrative offence for which a fine up to CZK 200,000 may be imposed.
(10) Which items should be taken into account when deciding on the amount of the compensation?
The employer is obliged to provide compensation for expenses incurred to the employees in connection with the performance of work. At the same time, the Labour Code allows the employer to determine the conditions for providing such compensation. It is therefore the employer’s responsibility to determine the mandatory equipment of the employee’s home workplace. The mandatory equipment should comply with the standard requirements for a workplace, including the OHS rules (desk, chair, lighting…). Last but not least, the employer should also take into consideration the increased consumption of electricity, water, heating, or other items, since the employee can reasonably argue that those costs would not have been incurred if he had been in the workplace at the employer’s premises.
(11) Can the expenses be provided as a lump sum?
Yes, the employer can set a lump sum based on the rules laid down in the employer’s internal regulation or in the employment or other agreement, provided that the amount of the lump sum had been demonstrably determined by the employer on the basis of a calculation of actual expenses.
(12) What is the tax regime for compensation for working from home? Does this regime differ in case of lump sum compensation?
The tax regime is similar in nature to travel expenses, i.e. if the statutory conditions are met, it is an employee’s income that is not subject of tax and thus is not a part of the basis of assessment for social security and health insurance. On the employer’s side, this is a tax expense. This scheme also applies to lump sum compensation.
(13) In what form can the compensation for home working be provided to employees?
The method of providing compensation for work from home should be laid down in the employer’s internal regulation and it can be either a separate payment to the employee’s account recorded in the payroll system or it can be part of the employee’s monthly salary transfer to his account recorded in the payroll system.
(14) Is this compensation subject to executory deductions?
According to the resolution of the Czech Supreme Court of April 10, 2014, file no. 21 Cdo 3774/2013, the execution for monetary performance cannot be ordered and performed by ordering other pecuniary claim, that the employee has against the employer for travel allowances, to which the employee is entitled under relevant provisions of the Labour Code, even if this claim is not expressly excluded from the court enforcement or execution. Even though this concerned travel allowances, we assume that this decision is also applicable to the provision of compensation for home office.
The case law of the Czech Supreme Court has concluded in the past that the purpose of travel allowances is not to reward the employee for performed work and travel allowances by their nature do not substitute remuneration for work, but are used solely to compensate the expenses incurred to the employee to travel to a place other than his regular workplace to perform work; for this reason, the Code of Civil Procedure stipulates explicitly that when executing court decision by deductions from the wage of the debtor, the amount provided for compensation of expenses connected to performance of work, especially on business trips, are not included in the net wage.
(15) What about meal vouchers during home office? Can the employer continue to provide them? Even in a favourable tax regime?
Company catering or meal vouchers are a benefit that is provided at the employer’s discretion. The employer also lays down the conditions for its provision. The conditions should not be discriminatory.
If the employer provides catering contribution – especially in the form of meal vouchers these days, and considers providing them also in case of working from home, there is no need to worry about tax non-eligibility of costs on the employer’s side, it is only necessary to take into account the relevant provisions of the Act on Income Tax – the catering allowance can be claimed as an expense of the employer, if the employee’s presence at work during the set shift lasts at least 3 hours.
(16) What are the problems of home office abroad?
Risks are both legal and tax, especially in a long-term use of home office. The employer can be at risk of establishment of tax permanent establishment abroad, but there is also the possibility of applying foreign law according to the regular place of work. The employee is at risk of tax residency abroad and related administration. It is also difficult for employers to check the workplace of every employee and to deal with possible accidents at work. In terms of tax issues, we already record activities of some states in the EU, namely the conclusion of a mutual agreement leading to limiting the impact on the taxation of individuals.