Professor of Labour Law,
School of Law, University of Tartu,
The emergence of COVID-19 in early 2020 has posed several challenges for working life. Major changes took place both in the labour market and in employment relations. From a legal point of view, the question arose as to how to apply the rules in force or how to change the law so that both employees and employers would survive in a pandemic situation. COVID-19 also led to the widespread introduction of remote work, as moving people from the office to the home helped reduce human contact, which was needed to limit the spread of the disease.
Although there is no unanimous position on whether COVID-19 accelerated the pre-existing trend towards greater use of remote work, it is clear that working from home has come to stay, whether in the form of working only from home or hybrid work (partly at home, partly in the office). Working from home saves time that would otherwise be spent going to and from work, giving employees more flexibility and a better chance of achieving a work-life balance. Studies show that homeworkers are happier and more productive and that after the end of the pandemic, the average employee wants to work from home half of their working time. This leads to the question of whether the right to work (partly) from home should be one of the fundamental rights of an office worker.
For decades, the focus of labour law regulation has been on the employee, who is subordinate to the employer or whose activities are controlled by the employer. The employee’s subordination is largely expressed in the fact that the employer determines how, where and when the employee must work. One of the starting points for the regulation of labour relations is that the work is performed in a factory or office, i.e. in a place under the employer’s supervision. If the employee works from home, the employer has no control over both the employee’s working hours and the place of work. This raises the question of whether and how to protect homeworkers.
First, it may be discussed whether a homeworker is a “genuine” employee in need of legal protection. As the employer does not have a precise overview of how the employee’s working hours are formed and what their place of work looks like, it can be considered that the employee acts independently. Although the employee receives tasks from the employer, i.e. the employer determines the content of the work, they determine when and where to work. Thus, working from home blurs the line between the employee and the independent worker.
The problem is unlikely to arise in the case of hybrid work, but if the employee only works from home, the employer may want to hire such a person as a self-employed person or as a freelancer. However, since the employer retains strong control over the employee through the detailed instructions given to them, such a worker cannot be regarded as independent. It also points to the need to rethink the basis for defining an employment relationship, for example, by focusing more on the employee’s economic dependence than on the criterion of subordination.
Second, the special work organization of the homeworker does not allow the employer to fulfil one of its main obligations, which is to ensure safe and healthy working conditions for the employee, both by limiting working hours and by complying with occupational health and safety rules. As a result, working from home also tests the boundaries of the division of responsibilities between the employer and the employee.
Although for some tasks it may be possible to keep records of working time by technical means, this cannot be done, for example, in the case of mental work. Precise agreement on working hours between the employee and the employer reduces the attractiveness of working from home for the employee. However, as the employer cannot supervise working time, the organization of working time must be negotiated between the parties. The employee will then be responsible for complying with the working time restrictions. These must also be followed by the employer, whether through the employee’s right to disconnect or in any other way.
In addition, the employer cannot guarantee that the environment in which an employee works is healthy and safe. The employee can also be held responsible in this matter if the employer has informed them of the possible risks and trained them on how to avoid these hazards. A somewhat more complicated question is how to maintain the mental health of the homeworker, which can suffer when they work alone and face a lack of team spirit and support. During a pandemic, this is compounded by the increased burden of family responsibilities. It is important that the employer also teaches the employee mental health first aid techniques and implements measures to enhance cooperation between employees.
In summary, although there are many positive aspects to working from home, the need to protect the employee must not be forgotten, even if it leads to a rethinking of some of the long-standing rules of labour law.
Expert article 2988
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