Working from home: What can employers and employees do to prepare?

Tax & Legal Alert | PwC Hungary | 12 March 2020

An increasing number of employers are instructing employees to work from home due to the pandemic. And those who have not yet will do so in coming days.

What are the conditions for ordering employees to work from home?

1.      Employers can order employees to work from home if:

• the nature of their job makes it possible for employees to work from home independently,
• the employer or the employee has the right tools (computer equipment) that enable the employee to perform their tasks remotely, and
• it is possible to create a healthy and safe working environment at the employee’s home where work safety and confidentiality requirements can be met.

2.     Before ordering employees to work from home, employers must first assess the following:

• What jobs can or cannot be performed from home – this can be determined by middle managers and HR leaders;
• Availability of suitable IT equipment (mobile phones, laptops) – the obligation to provide such tools primarily rests with the employer, but employees may also be allowed to use their own devices. However, the employer’s IT consultant or cyber security specialist must first assess the suitability of the employee’s equipment and determine whether such external devices can be used to securely access corporate systems;
• Whether there is suitable infrastructure for working from home, such as broadband internet, VPN, a desk, chair, lighting and other equipment needed for work (a lockable cabinet, printer, etc., if applicable)
• Whether the size and layout of the work area at home and the technical conditions allow for a healthy and safe work environment. We recommend consulting a work safety specialist and an IT expert to help assess compliance with the technical conditions specified in points (iii) and (iv). It is the employer’s responsibility to ensure that the technical conditions are met. Employers may check this in person, or the employee can also make a written declaration that the technical conditions are satisfied, and take photographs of their work environment so that the employer can assess it from an occupational safety perspective.

3.     Working from home (“otthoni munkavégzés”) is generally not the same as teleworking (“távmunka”); however, ordering employees to work from home due to the coronavirus pandemic, whether temporarily or for the long term, may qualify as teleworking because it is carried out in a place separate from the employer’s premises and on an ongoing basis, by means of IT equipment.

4.     Under the present circumstances Employers may unilaterally order employees to work from home, after performing the assessment described above. Employees must be informed of the expected duration of the unilaterally imposed work-from-home policy. This may range from one day up until the end of the emergency period (for example, until further notice from the employer, depending on the current situation). This period may be extended by the employer’s decision, and employees must be notified accordingly.

If working from home is not possible and the employer is required to close its premises as a result of the pandemic, employees will not be entitled to their base salary for the period of closure, as such closure qualifies as force majeure. Employees exempted from work will be entitled to remuneration (which may be less than their base salary) under a mutual agreement, while employees on leave of absence will be entitled to absentee pay.

5.     Employers who have a work-from-home policy that only covers flexible work arrangements under which employees may work from home occasionally (once or twice a month) should bear in mind that they cannot invoke the current crisis to oblige employees to work from home indefinitely. These employers are also entitled to order long-term work from home as described in point 4 above, but they may apply their existing policies.

6.     Employers have the right to set the work schedule of employees working from home. In doing so, employers may also decide whether the employee’s work schedule should be fixed or flexible. For teleworking, the work schedule is usually flexible, which means that employees will be able to determine their individual daily work schedule. In that case, employers will not have to pay their employees for overtime. It might be good practice for employers to require employees to continue to be subject to the most recently prescribed (fixed) work schedule when working from home. However, employers may also prescribe a flexible work schedule specifying the hours during which the employee must be available, and the timeframe within which employees should respond to calls or queries. Such expectations can be laid down via e-mail; the employee’s consent is not required.

7.      In addition to setting a work schedule, employers should also specify how and when employees are to comply with their daily obligation to record work hours while working from home.

8.     While working from home, employees will continue to be entitled to the benefits laid down in their employment contract (in the collective agreement or specified by law).

9.     Accidents while working from home are to be treated as accidents at work, but only if the accident occurs at the place designated for work (i.e. within a 2 to 4 m² working area) and in the context of the employment relationship. It is good practice for employers to provide training to employees, or at least to inform them in writing of the related risks and other important matters, before they start working from home. Employers should also find out if their accident insurance can be extended to cover employees working from home.

10.  As a general rule, the employer is obliged to pay the costs related to the employee’s working from home. Such costs may include additional expenses directly related to working from home, such as electricity costs. For example, if the employee already subscribes to a flat-rate broadband internet plan, there is no additional cost of working from home, and the employee cannot claim reimbursement of such expenses from the employer. Reimbursement can be made on the basis of an itemised statement of expenses or by payment of a lump sum. Under personal income tax rules, the employer may offer the employee a tax-exempt reimbursement of the reasonable costs incurred while teleworking. Employers may also contribute towards the cost of equipment necessary for working from home; such contributions are also tax exempt up to a statutory limit.

11.   Before requiring employees to work from home, employers should also make sure they have put in place appropriate information and data protection rules. In particular, such rules could stipulate that employees must

• ensure the secure storage (and transport) of any work equipment they have been provided;
• store their devices in such a way that it cannot be accessed by unauthorised persons, and they may only use programs and applications installed by the employer on such devices;
• use their devices while working in such a way that third parties cannot have access to them;
• keep their work area (or if this is not possible, their home) locked while they are away;
• ensure that all devices and work-related documents are locked away; and
• notify their designated IT contact if they detect any unauthorised use.

12.   The conditions under which employees work at home, and whether they comply with the employers’ regulations, may be checked by the employer at the employee’s home, with prior notice, and without undue inconvenience to residents.

Please note that the above summary refers to cases specific to the current pandemic situation, and cannot therefore be construed as general guidelines or legal advice on the rules governing teleworking.

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If you have any questions regarding the above, please contact our labour law experts at Réti, Várszegi & Partners:

Dr. László Szűcs
Attorney-at-law, Law Firm Member
laszlo.szucs@pwc.com      

Dr. Márta Zsédely
Attorney-at-law, Law Firm Member
marta.zsedely@pwc.com

In matters concerning the taxation of benefits provided in connection with telework:

Dr. Péter Honyek
Director
PwC Hungary
Tax and Legal Services
peter.honyek@pwc.com