JILPT Research Report No.219
Employment-Based Telework in Comparative Perspective: National Legal Systems and International Normative Frameworks

March 31, 2022

Summary

Research Objective

This research examines the legal frameworks and practical trends governing employment-based telework in selected foreign jurisdictions during the COVID-19 pandemic. It further seeks to collect, organize, and analyze foundational materials that may serve as a reference for future policy development and legal framework design concerning employment-based telework in Japan.

Research Method

A literature review of sources concerning Germany, France, the United Kingdom, the United States, and the EU/ILO.

Key Findings

Chapter 1: Germany

In Germany, even before the spread of COVID-19, a wide range of labor management issues arising from telework—such as the commencement and termination of telework, the establishment of home offices, wages and salaries, working hours, industrial health and safety, industrial accident compensation, data protection, and collective labor-management relations—had already been extensively discussed either as issues of interpretation under existing labor laws or as matters of legislative policy.

A key feature of these discussions is that, where telework is performed at the employee's home (the home office), the German Constitution (Grundgesetz) guarantees the employee the “inviolability of the home” (Unverletztlichkeit der Wohnung). This constitutional protection makes it difficult for employers to exercise over the home office the same degree of control that they would in a conventional place of business. Consequently, legal interpretations and legislative approaches have evolved that seek to balance the competing interests between labor and management.

Accordingly, for example, while it is generally understood that employers cannot, in principle, order employees to work from home, the application of occupational safety and health regulations to employees' home offices is limited to certain defined aspects.

This situation, however, has been partially altered by the COVID-19 pandemic. Under the provisions of the Infection Protection Act (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen (IfSG)), employers may now be required to offer telework where an employee’s duties can be performed from home, and employees are correspondingly obliged to accept such arrangements unless they can have a legitimate reason for refusal. To that extent, the traditional “inviolability of the home” for employees has become more limited than in the pre-pandemic period.

Furthermore, in Germany, legislative policy discussions surrounding mobile work—including home-based telework—had already been actively developing prior to the pandemic, driven by the broader digitalization of the employment society. At the governmental level, these discussions have centered on: (i) granting employees a right to negotiate with employers regarding the implementation of mobile work, (ii) imposing an obligation on employers to record all working hours of employees engaged in mobile work, (iii) extending the scope of protection under the statutory employees' compensation insurance scheme to cover home-based work; and (iv) conferring upon Works Councils co-determination rights over working conditions in mobile work arrangements. Of these proposals, items (iii) and (iv) have already been enacted as legislative policy through the Works Council Modernization Act (Betriebsrätemodernisierungsgesetz) of June 2021.

Chapter 2: France

French legal norms governing the implementation of telework, as well as the rights and obligations arising from teleworking arrangements, are primarily set forth in the Labor Code (Code du travail) and in two National Interprofessional Agreements (accord national interprofessionnel, e.g. ANI) on telework. In practice, employers are encouraged to conclude company agreements with labor unions to establish rules that further specify the provisions of the Labor Code and the regulations of ANI. During the COVID-19 pandemic, the number of companies entering into such telework-related company agreements increased markedly.

In France, telework must be based on the mutual consent of both the employer and the employee. Except in special circumstances—such as a public health emergency involving the spread of infectious diseases—employers do not have the authority to unilaterally order employees to work via telework. Employees also do not have the right to demand telework from their employer. Nevertheless, if an employer refuses a telework request from an employee who meets certain requirements, the employer is obligated to explain the reasons for the refusal. Furthermore, when an employer implements telework based on a charter or collective agreement (accord collectif), the agreement must include specified items such as the conditions for transitioning to telework, the conditions for returning from telework to on-site work, and the times during which the employer can normally contact the employee. Although current law permits employers to introduce telework individually without adopting a charter or collective agreement, the 2020 ANI strongly encourages employers to conclude a collective agreement with labor unions and establish a general framework in advance before implementing telework.

Employees engaged in telework are guaranteed the same rights as those performing their duties within the place of business. General regulations concerning the allocation of costs, working hours, occupational safety and health (including industrial accident insurance), surveillance and monitoring, and collective labor-management relations also apply in telework settings. At the same time, ANI provides specific guidelines regarding matters to be considered in each application of regulations to individual cases. Furthermore, employers implementing telework bear special obligations in their relationship with teleworkers. These include the obligation to grant priority for placement or reassignment to positions not involving telework, the obligation to provide information on the availability of such positions, and the obligation to conduct interviews addressing the employee's working conditions and workload.

Chapter 3: UK

Even before the COVID-19 pandemic, teleworking (working from home) had been adopted at relatively high rates in the United Kingdom, particularly in highly specialized industries or in sectors that could be presumed to equip with advanced information and communication technology. During the pandemic, the proportion of teleworking increased in occupations that required higher levels of qualifications and experience. In contrast, industries and occupations that heavily relied on face-to-face interaction saw minimal change in the proportion of teleworking both before and during the pandemic. Ultimately, the feasibility of telework is largely influenced by the characteristics of the industry and the nature of the work involved.

In the UK, “all employees have the legal right to request flexible working,” and employees wishing to telework can exercise this right to change their employment conditions (from regular office work to telework). When the employer refuses such a request, certain grounds exist: (i) the burden of additional costs, (ii) a detrimental effect on ability to meet customer demand, (iii) an inability to reorganize work amongst existing staff, (iv) an inability to recruit additional staff, (v) a detrimental impact on quality, (vi) a detrimental impact on performance, (vii) insufficient work available for the periods the employee proposes to work, (viii) planned structural change to the employer’s business, (ix) any other business reasons prescribed by the competent minister in regulations) must be present. This is one characteristic of UK law.

Chapter 4: USA

Telework had been utilized in the United States, even before the spread of the pandemic, and its use increased further as a result. However, no specific legal framework regulating telework exists; in practice, it is managed within the framework of existing laws and regulations. In contrast, in the public sector (federal personnel), telework has been promoted based on legislation for over 20 years.

The Fair Labor Standards Act of 1938 (FLSA) requires employers to track teleworkers' actual hours worked, as it defines “employ” to include “suffer or permit to work.” Under the Occupational Safety and Health Act of 1970 (OSHA), the “place of employment” may include employees’ homes. Therefore, employers are advised to ensure the work environment at employees’ homes is “free from recognized hazards that are causing or are likely to cause …serious physical harm” as a risk mitigation measure. State Workers' Compensation Law covers injuries arising out of employment and occurring in the course of employment. This raises questions about distinguishing between work and personal activities when teleworkers are at home. Ordering telework differently (ordering or not ordering telework) for individuals with attributes covered by Anti-Discrimination Laws compared to those without such attributes may constitute discrimination. In disability discrimination cases, the applicability of telework as a reasonable accommodation is a key issue. Note that there are no regulations prohibiting discrimination based on regular vs. non-regular employment status. Telework for federal government employees is promoted under the Telework Enhancement Act of 2010. The Office of Personnel Management issued the Guide to Telework in the Federal Government (April 2011) to provide policy guidance to federal agencies implementing telework.

Chapter 5: EU/ILO

According to the ILO, telework has evolved through three stages. The first generation is the home office, the second generation is the mobile office, and the third generation is the virtual office, which represents the “Working anytime, anywhere” stage.

Telework rapidly expanded across the EU countries during the COVID-19 pandemic, but significant disparities exist based on educational background, occupation, and other factors.

There is no binding EU legislation specifically governing telework, the Framework Agreement on Telework, however, was concluded in 2002 between the European social partners―that is, EU-level employer and employee organizations. The Agreement addresses, inter alia, the voluntary nature of telework, employment conditions, data protection, privacy, and related matters. Its legal status under EU law is, however, problematic.

At the member state level, the Agreement has been implemented through a variety of mechanisms, including the extension of generally binding effect to domestic collective agreements, incorporation into non-binding domestic agreements, adoption as employer–employee instruments below the level of collective agreements, or implementation through national legislation. Furthermore, in 2020, the European social partners concluded the Autonomous Framework Agreement on Digitalization.

EU legislation relevant to telework includes the OSH Framework Directive, the Working Time Directive, the Work-Life Balance Directive, and the Directive on Transparent and Predictable Working Conditions. With respect to the Working Time Directive, the Court of Justice of the European Union has issued several rulings in recent years that have significant implications for telework. Notably, the Matzak judgment (2018) held that certain periods of stand-by time spent at home constitute “working time,” while the CCOO judgment (2019) requires employers to establish systems for recording the actual daily working time of each employee.

Recent developments include the European Parliament's 2021 resolution calling for the establishment of the “right to disconnect” as an EU Directive, a position also endorsed by the European Trade Union Confederation (ETUC). Currently, several member states, including France, Italy, Belgium, and Spain, have enacted legislation stipulating this right.

Contents

• JILPT Research Report No.219, full text (PDF:2.2MB) [in Japanese]

Category

Labor laws/working rules, Working conditions/work environment, Diversified working styles, Novel Coronavirus (COVID-19)

Research Period

FY 2020–2021

Authors

IKEZOE Hirokuni

Assistant Research Director, The Japan Institute for Labour Policy and Training (JILPT)

YAMAMOTO Yota

Vice Senior Researcher, JILPT

KOHNO Natsuki

Assistant Professor, Faculty of Law, Meiji Gakuin University

TAKIHARA Hiromitsu

Researcher, JILPT

HAMAGUCHI Keiichiro

Research Director General, JILPT

(Titles and affiliations are as of the time of publication.)

For Citation

JILPT. 2023. Shogaikoku ni okeru koyo-gata terewaku ni kansuru hoseido to no chosa kenkyu [Employment-Based Telework in Comparative Perspective: National Legal Systems and International Normative Frameworks]. JILPT Research Report No. 219. Tokyo: The Japan Institute for Labour Policy and Training.

Related Research

• JILPT Research Report No.5, Actual Conditions of Home-based Work in the West and Implications for Japan: Based on Examples from the United States, Britain and Germany (2004)
• JILPT Research Series No.117, Survey on Home-Based Employment in other countries (2013)

JILPT Research Report at a Glance

• Category
• In English
• In Japanese