Stay at home - Corona

In order to contain the Corona virus, it is important to prevent interpersonal contacts as much as possible - that is: stay at home. For this reason, numerous companies are currently sending their employees to their home office. In addition to the logistical challenges, legal requirements must also be observed.

Flatten the curve! That is the order of the day. The aim of minimizing social contacts is to prevent a sudden increase in infections with the corona virus. In the world of work, this often means moving to a home office. In addition to the many practical questions, the switch to homework also has various data protection implications. Working from home carries the risk of lowering the level of protection for data, since naturally the same security measures cannot be implemented as at the company's headquarters. Then there is a risk of disclosure, theft or misuse of the data by unauthorized persons. Countermeasures must be taken here with special measures.

If you want to send your employees to your home office now, you should first check whether you are allowed to do so. State bans do not exist. However, homework can be excluded under private law. Working in the home office is often expressly excluded in service contracts with customers or is only permitted under certain conditions. This applies in particular if companies process personal data on behalf of the customer as part of their service provision.

Agreements on order processing often contain regulations on the admissibility or prohibition of working from home. This also applies, for example, to the widespread model contracts of the Bavarian State Office for Data Protection Supervision (BayLDA) and the Federal Commissioner for Data Protection and Information Security (BfDI). The current regulations range from a complete ban to an approval requirement in individual cases to general approval, sometimes subject to conditions. It is problematic when work in the home office is completely prohibited or the stipulations cannot be met.

Some samples require the consent of the employee and all roommates that the customer may enter the apartment for checks. That should be the case at least. The consent can now no longer be obtained effectively in the sign of Corona. If the employee has the choice of consenting, continuing to work in the office at risk of infection or using vacation days, this is hardly voluntary. Such regulations thus act like quasi-prohibitions.

If, contrary to a prohibition, work is done in the home office, this is contrary to the instructions and constitutes a breach of duty. This is not automatically remedied by calling official authorities to stay at home. Neither an express order of an employee's quarantine due to their own illness or as a contact person according to Section 28 IfSG, nor the general recommendation to stay at home, mean that the employee must work in home isolation. In this respect there is no compelling objection to the order, so that this does not take precedence over the prohibition in accordance with Art. 28 Para. 3 a GDPR.