Home Office and Employees' rights

29/08/2022

Home Office is no longer a benefit for a tiny percentage of employees, but is becoming the norm on the job market in industries where working from home is possible. There is less talk anymore about employers compensating employees for the increased costs associated with home office work.

So what is a home office employee entitled to?

Equipment to perform work

Dependent work is performed at the workplace or other agreed location, but always at the employer's expense and responsibility. The employer is obliged to create the conditions for the employee to carry out his/her work tasks.

This means that the employer must provide the employee with the equipment, tools and other means necessary for the performance of the work, just as if the employee were working at the workplace. These include, but are not limited to, a computer or laptop, keyboard, mouse, work chair, work desk, mobile phone, printer.

The same applies, for example, to sufficient security of the employer's data. If the data the employee works with is compromised when working from home (e.g. by insufficient security of the home internet connection), the employer incurs risk. The employer is responsible for this risk. Therefore, the employer should take reasonable steps to secure their data before the employee "goes to home office". One can imagine e.g. checking how the employee connects to the internet from home, training the employee on how to use the public connection (e.g. instructing the employee not to connect to the public network at all). If the employer requires a certain level of security for the internet connection and the employee does not have such a secure connection at home, it is the employer's responsibility to provide it at their own expense.

The amount of compensation for wear and tear on the employee's own tools, equipment, items

It is common for employees to use their own equipment, e.g. their computer, their chair or their keyboard. If these items are necessary for the employee's work and the employer agrees to their use, then the employee is entitled to compensation by the employer for the wear and tear of these things. Chairs, keyboards, computers and software wear out more quickly with more frequent use.

It also happens that the employer makes greater use of certain employee-owned equipment. For example, employees commonly use their own computers, keyboards, mice and speakers while at Home Office. It is efficient to fix the amount of compensation as a lump sum, for example by an internal regulation issued by the employer. E.g. the compensation may be set at CZK 30 for each day of use of the own computer, including basic software, and CZK 5 for each day of use of the own keyboard. However, the flat-rate reimbursement must be demonstrably determined on the basis of actual expenses. Up to the amount of the lump sum, the costs are deemed to be proven, i.e. it is not necessary to prove them separately in each case (e.g. by receipts, lifetime data, etc.).

If reimbursement is not provided for in an internal regulation, the amount of reimbursement for the use of specific equipment or items of the employee's own should be agreed individually, in the form of an agreement. Again, a flat-rate compensation may be negotiated. The amount of compensation is based mainly on the cost of the items and the extent of their use. It should be based on the specific invoices submitted to the employer by the employee. This is for the sake of evidence in possible tax proceedings.

Are these reimbursements taxable? No. Compensation given to an employee for the wear and tear of his own tools, equipment and means necessary for the performance of his work is not subject to employment income tax.

However, such compensation cannot be "hidden" under remuneration for work or under other income of the employee, which, on the contrary, forms the basis of personal income tax.

Increased expenses related to home office work

If the employee works from home, he/she has to use heating more frequently (or air-conditioning), consumes more electricity and water, has higher cleaning costs, etc.

However, it is the employer who has the obligation to create and maintain working conditions for the performance of work. Therefore, the home office employee is entitled to compensation for the increased expenses reasonably incurred for the consumption of electricity, water, gas and heating, etc. This does not mean that from now on the employer pays the energy and housing costs to his employer; the amount by which the costs have actually increased due to the home office should be reimbursed.

According to the opinion of the Czech Directorate-General for Finance, lump sum reimbursement cannot be used for these costs (unlike for the wear and tear of one's own equipment). Calculating the reimbursement can be a real headache for both employers and employees, especially at a time when energy prices are changing rapidly and it is difficult to make comparisons between 'before home office' and 'during home office'. It is necessary to assess the amount of the increased costs for each expense separately, based on the actual evidence and data.

It is the employee who has to prove these costs to the employer. Why?

A look into the world of taxes: for the purpose of proving in a tax proceeding, the employer must be able to break down and support by evidence the determination of the amount of compensation provided to the employee. Again, compensation for increased costs incurred by an employee while working from home does not generate taxable income on the part of the employee - so the compensation is not taxable.

It is apparent that the employer will require the employee to provide detailed justification for the increased costs of working from home, and the appropriate supporting documentation. In the case of increased consumption of water, electricity or gas, the difference can be calculated, for example, according to the size of the floor area of the room where the employee works in relation to the total area of the house or flat.

Example: if the employee's Home Office is 15% of the floor area of the house, the employee was in the home office for a total of 1 month (30 days) during the year, the total cost of electricity, gas and water for the year was 40,000 CZK, then calculate: 40,000 * 1/12 * 0.15 = 500. Therefore, the employer pays the employee 500 CZK per year for the above increased expenses. This calculation, however, does not take into account that the heating and other expenses prorated were only needed for 8 hours a day on weekdays "for the purpose of doing the job". It also assumes that the home office would not be heated at all if the employee commuted to the employee's workplace.

Distinguishing when the higher costs are incurred in connection with the performance of work and when for the employee's private purposes can be difficult. For example, if an employee uses his or her own mobile phone for work, in addition to wear and tear (see above), he/she may incur higher costs for telecommunications services if the telephone charges are, for example, a combination of a flat rate and a call charge. In order to account to the employer for the proportionately higher costs, the employee should keep a record of work calls made on a private telephone. The charges for telecommunications services can then be divided according to the proportion of calls made into private and business calls, and the total telephone charges can be apportioned according to this key to determine the amount of reimbursement the employer is required to provide.

It may be relatively straightforward to determine the amount of reimbursement for electricity used by electronics used by the employee for home office work. For laptops or desktops, determining their kWh consumption can also arrive at the cost of the electricity actually used during the work.

However, in some cases the employee is not entitled to reimbursement. An example of this would be an internet connection - if the employee already has an internet connection in place before starting work at the home office and does not incur any increased costs in connection with the work computer, then they are not entitled to reimbursement from the employer. The same applies if the employee uses a private telephone number with a mobile phone plan (flat rate) also for business calls, where the employee pays the same amount per month regardless of the time used on calls. The employee's monthly cost of the mobile tariff does not change, even though he/she uses the private mobile phone for work calls.

Ensuring health and safety at work (OSH)

The employer has the same obligations in relation to the "Home Office employee" as if he/she were working at the workplace - namely quite broad occupational safety and health. Importantly, all measures must be provided at the employer's expense. If the employer passes on the costs of ensuring OSH conditions to the employee (even partially), the employer could face a fine from the State Labour Inspection Office of up to CZK 2 million.

In general, the employer is obliged to create working conditions for employees that enable them to perform their work safely. The employer must systematically search for dangerous factors, identify their causes and sources, then search for and assess risks, and take measures to eliminate them.

There is an obligation to provide employees with training in legal and other regulations to ensure OSH, not only when they start working, but also in cases which have or may have a significant impact on OSH. In such cases, training must be provided without undue delay. It is clear that starting work in a home office has or may have an impact on health and safety - the initial training that took place on commencement of work will now not be fully sufficient. The employer should therefore provide appropriate training to the employee going into the home office.

To do this, however, he or she needs to know in detail the environment in which the employee works at home. The employer should familiarise themselves with this environment - either in cooperation with the employee or, for example, by visiting the working environment at the employee's home (under the employee's approval). The employer should identify potential risks and work with the employee to eliminate them (e.g. provide adequate fire protection, ergonomic office chair, etc.). Subsequently, the employee should be provided with training and have his/her knowledge verified. The employer must regularly check compliance with the established OSH level.

Employees often find OSH training a tedious duty. Modifying the home working environment can also be unpleasant. But the truth is that employers are liable for work-related injuries (or occupational diseases) even if they occur to employees at the home office. Therefore, it is clearly in the employer's interest to carefully identify and eliminate risks before the employee begins working from home, provide training, and then work with the employee on an ongoing basis to identify potential risks and take steps to eliminate them.

For example, the employer may set out in an internal regulation the parameters that the home working environment should meet. These include fire protection, a minimum of 12 cubic metres of space per employee, a maximum temperature (for office and administrative work) of 27 °C, etc.

Arrangements with the employer

If the home office is only a benefit (e.g. the employee could choose to work from home for part of the week, but does not have to), it is sufficient for the employer to introduce this benefit and the conditions for its use by internal regulation. The employee can arrange with the employer the use of this benefit on specific days. For example, the conditions for the use of home office work may include certain requirements for the facilities in the employee's home (e.g. high-speed internet at home, ergonomic chair and desk, etc.). This may be because the employer wants to avoid additional compensation costs for the employee. Although even in such a case the employer will be obliged to compensate for wear and tear on the employee's own equipment, they will not, for example, have to install a new internet connection at the employee's home.

If either the employer or the employee would like to make sure that the employee will work from home (e.g., the employer wants to be able to order the employee to stay working from home or the employee wants to make sure that he/she will not have to be present at the workplace), a !Home Office Arrangement" should be concluded.

If the place of work changes, an amendment to the employment contract must be concluded, as this is a change to an essential part of the contract.

Costs cannot be passed on to the employee, even in part

We are warning against "agreements" under which increased costs and wear and tear costs will not be reimbursed to the employee. Although the employee may give their consent (especially if they would like to work form home), the law does not allow the employee to validly waive the right to reimbursement. Thus, despite entering into such an (invalid) "agreement", the employee would still be entitled to reimbursement of those costs.

Similarly, it is not a good idea to "avoid" the reimbursement by increasing the salary. Even after such a pay rise, the employee would still be entitled to reimbursement of the increased expenses and reimbursement for wear and tear on his own belongings. In fact, the wage does not constitute compensation for the employer's obligation to create and maintain working conditions for the performance of the work, nor does it constitute compensation for wear and tear on the employer's own tools, equipment and items necessary for the performance of the work.

As stated above, the employer is liable to a substantial fine for effectively passing on the costs of ensuring OSH.

Conclusion

Employees should not have to "pay extra" to work from home. In most cases, the employee will incur costs that would not be incurred if the employee worked at the workplace. The employer must reimburse the employee for these increased costs. They are also obliged to provide the employee with appropriate level of OSH, regardless of the fact that the employee works from home. To do this, the employer must take active steps and monitor the level of OSH in their own interest.

If the employer does not take a proactive approach to these obligations, the employee should take the initiative and, knowing his or her rights

  • account to the employer for the increased costs,
  • charge the employer for the cost of wear and tear of his/her own belongings (if he/she uses them for work with the employer's consent), and
  • require the employer to comply with its OSH obligations.