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New draft of a Remote Working Act

After the first draft law for the introduction of a Remote Working Act (Mobile-Arbeit-Gesetz, MAG) foundered, in October 2020, even prior to an inter-ministerial consultation, the Federal Ministry of Labour and Social Affairs put forward a modified draft, in January 2021. Instead of a statutory right for employees to work remotely, the amended version of the draft law only provides for a requirement to have a discussion to that effect.

Purpose and provisions of the MAG

The aim of the proposed legislation is to establish a legal framework for remote working. Working from home would be facilitated through the introduction of legal provisions and the opportunities for accessing this should be simplified. In particular, this relates to specific provisions on occupational safety, the recording of working time as well as rules on the ongoing problem of the scope of accident insurance cover in a home office.

Introduction of a requirement to discuss remote working

The original draft of the legislation had still provided for a statutory right for employees to work remotely for at least 24 days per year. The amended version of the draft contains only a requirement for employers to discuss remote working. Accordingly, in the future, employers would be obliged to discuss the possibilities of remote working with employees who would like to do this with the aim of reaching an agreement that complies with the wishes of the employee. To this end, employees would have to inform employers, in text form, about the start date, duration, the extent and scheduling of the remote working no later than three months prior to the desired start date. 

If an employer fails to comply with the requirement to discuss remote working, then the draft legislation provides for the creation of a legal fiction in favour of the employee; a remote working arrangement in accordance with the wishes of the employee would then be deemed to have been agreed for a maximum period of six months.

If a discussion has taken place and the employer does not intend to comply with the employee’s wish then the employer has to explain to the employee the reasons for this decision, in writing, no later than two months after the request had been made. The grounds for refusal here may not be irrelevant or arbitrary. In contrast to the original draft, the new draft no longer provides for specific conditions such as the relevant activity not being suited for the remote working environment or a conflict for operational reasons.

The employee would then only be entitled to initiate a new discussion about the possibility of remote working four months after being notified of the negative decision. If an employer fails to provide the respective explanation for the negative decision within the two-month time limit then the legal fiction would likewise apply by which the authorisation in favour of the employee and remote working would again be deemed to have been agreed in accordance with the wishes of the employee. Ultimately, this constellation strongly resembles the discussion requirement between employers and employees in the context of parental leave.

Even though the discussion requirement would not give employees any legal entitlement to remote working, nevertheless, the opportunities to access this would be facilitated, not least, by the introduction of the legal fiction in favour of the wishes of employees.

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