Home office must be agreed upon, if not already provided for in the employment contract. In times of the COVID-19 crisis, it is to be assumed that employees are forced to give their consent due to their fiduciary duty (unless this would be unreasonable due to special circumstances), but this does not change the fact that it must be agreed (without form). In any case, the agreement should be recorded (e.g. email).
Work time records:
The working time law applies despite the home office and the employer is obliged to record the working time (i.e., time of start, end and breaks). Since the employer cannot record this, he must oblige the employee to do so.
Availability by telephone and email during working hours should be agreed.
The revocability of the home office must be agreed.
The use of work equipment or its provision, maintenance and access must be regulated. The easiest way for the employer to provide access to the electronic workstation is to provide access in a protected environment or access via VPN connection or a lap-top. Here the employer can also take advantage of subsidies of up to EUR 10,000. The rest (e.g. chair, table, electricity, etc.) should be contributed by the employee (if possible and reasonable). If, however, additional costs are incurred, these must be reimbursed by the employer.
Viele Kollektivverträge sehen rudimentäre Regelungen (insbesondere welche Themen in der Vereinbarung geregelt werden müssen) vor.
Data protection, data security measures and professional secrecy obligations must be complied with (in particular also towards family members). The data protection authority recommends handing over an information sheet to employees. In addition, the processing list and the data protection policy of employers must be supplemented if necessary.
Combination with short-time work:
Home office can of course be combined with short-time work, so that employees work 10% of their working time at home per day, on certain days or only in the future.
How to improve the agreement?
The easiest way to improve the agreement on home office is, of course, to make an amendment. Alternatively, individual issues (especially regarding data security) may also be regulated unilaterally within the bounds of what is possible and reasonable.