On February 15, the draft of the Home Office Act was published. The regulations still have to pass through parliament and should come into force on April 1st, 2021. The new law regulates labor, social and tax law issues in connection with home office.
Home office means working from your private apartment, a secondary residence or the apartment of a close relative or partner also falls under the home office term.
Home office remains a matter of agreement
The following also applies in the future: Home office can only be established by mutual agreement between the employment contract parties, the agreement must be in writing (however, the lack of written form does not result in nullity). An early termination of the agreement for an important reason is possible, for example in the event of significant changes in the operational requirements or significant changes in the employee’s living situation, which no longer allow the work to be performed in the home office. The general conditions for home office can be determined by a works agreement, but works agreements cannot replace the individual agreement between the employer and each employee, so home office cannot be enforced by a works agreement.
Working hours: As in the office
The Home Office Act does not contain any new regulations on working hours. In the explanations, reference is made to the existing regulations: For home offices, the Working Hours Act (AZG) and the Rest Period Act (ARG) apply without restriction.
The AZG already provides that when working from home you can agree to record the balance of working hours, i.e. total records of the working hours. The agreement of activity-related balance records (“how long was something done”) is also possible: The employer-side review of working time records for start, end and break times takes a back seat and the “output plausibility” comes to the fore, which makes sense when working from home can.
Tax-deductible home office flat rate for digital work equipment
IT hardware and the Internet connection are regarded as “digital work equipment”. In principle, the employer has to provide this. This can be deviated from by means of an individual agreement or a works agreement if the employer bears the reasonable and necessary costs for the digital work equipment made available by the employee for the performance of the work. The costs can also be settled on a flat-rate basis.
Amounts that the employer pays to compensate for the costs of working in the apartment (home office activity) should be able to be paid out tax-free for a maximum of 100 days in a calendar year up to three euros per home office day by way of a home office flat rate. If the maximum amount of the home office flat rate is not exhausted by payments from the employer, the employee can claim income-related expenses in the corresponding amount without being offset against the flat-rate income-related expenses.
This is a replacement provided by the employer, which – like travel expense reimbursement – does not represent a taxable wage. Therefore there is no local tax and no employer contribution according to the FLAG. The home office flat rate should be due in particular for those cases in which none or not all of the digital work equipment used is made available by the employer.
The regulations for the home office flat rate are to be applied for the first time for home office days from January 1, 2021 and for wage payment periods from January 1, 2021 or in the 2021 assessment. The regulations are limited in time up to and including 2023 in order to be able to evaluate their effectiveness.
Deductibility of home office expenses of the employee
Employees can claim expenses for the ergonomic furnishing of their home workplace outside of a study (desk, swivel chair, lighting) up to an amount of 300 euros per year without offsetting the flat-rate income-related expenses as income-related expenses. The prerequisite for this is that you work exclusively at home (in the home office) at least 42 days a year. This should already apply to the assessment year 2020, with the amount of 300 euros each being divided into 150 for 2020 and 2021.
If the employer pays less than three euros per day in home office flat-rate, the employee should pay the difference between the tax-free flat rate received from the employer and the maximum amount of three euros for each home office day actually worked by him within the maximum limit of 100 days as flat-rate income-related expenses can assert in the assessment if there is no office to be taken into account for tax purposes.
Any expenses incurred by the employee for digital work equipment (such as computers and their accessories in particular) must be reduced by the sum of a tax-free home office flat rate (or, if applicable, the advertising costs made to compensate for home office flat rates not paid by the employer). If the acquisition costs do not exceed 800 euros, digital work equipment with a useful life of more than a year can be sold entirely as a low-value asset
Accidents at work in the home office
Accidents that occur in the home office are classed as accidents at work, regardless of whether you have a separate office at home or not. This ensures that the home office is treated equally in terms of accident insurance law and that working directly in the place of work or training. Accidents at work that occur in temporal and causal connection with the employment on which the insurance is based at the place of residence of the insured person (home office), as well as commuting accidents – this includes, in particular, medical journeys made from the home office, journeys to childcare facilities (kindergarten , School etc.) as well as ways of satisfying vital personal needs (e.g. shopping for lunch) in the vicinity of the home during working hours or during work breaks.
Labor inspector may only enter apartments with consent
In the case of home office, the apartment is considered an external job. Most of the provisions of the Employee Protection Act (ASchG), including the related ordinances, such as the regulations on job evaluation, information and instruction and preventive service support, therefore also apply to home offices. However, the ArbIG expressly stipulates that the labor inspection bodies are not authorized to enter the private apartments of employees in the home office, unless the employee gives his consent. A right of entry against the will of employees working in the home office would contradict the constitutionally protected basic rights of people living in private households (right to respect for private and family life and the inviolability of house rules)
Relieved Liability for relatives and pets
And what if the dog or the partner in the home office sweeps the company laptop off the table? This has also been considered: If the employer is damaged by people living in the same household with the employee or by an animal living in the household in the course of working in the home office, the damage is to be attributed to the employee as the cause of the damage, whereby the employee’s liability is relieved. Liability Act (DHG) apply.
