GT Newsletter 20.11.2020.

Home Office – properly regulated at last?

Judit

Amendments applicable to teleworking are finally out

On 11 November 2020, Government Decree 487/2020 (XI.11.) on the Application of Teleworking Rules During the State of Danger was promulgated, providing derogations from the provisions of the Occupational Health and Safety Act (Act XCIII of 1993) and the Labour Code (Act I of 2012), and allowing employers to provide teleworking opportunities in a lawful manner.
The #stayathome campaign launched in March 2020 launched, on a large scale, the possibility commonly referred to as “home office”, with the help of which many people were able to continue their work from home. The best option for this would have been the application of “teleworking”, as defined in the Labour Code:
“activities performed on a regular basis at a place other than the employer’s facilities, using computers and other means of information technology, where the end product is delivered by way of electronic means.” [Section 196 (1) of Act I of 2012]
The large number of employees working from home, however, shed light on the legislative shortcomings, whereby the Labour Code and the Occupational Health and Safety Act does not provide clear rules, or sometimes even provisions that are contradictory or cannot be applied in practice.
With the second wave of the Coronavirus, lawmakers sought to remedy this situation.
Occupational Health and Safety Act
The Government Decree mentions occupational health and safety measures in two sections: (Section 1).

  1. During the state of danger currently in effect, Section 86/A of the Occupational Safety and Health shall not apply.

This means that during the state of danger, the occupational safety rules also normally applicable for teleworking do not apply.
 
In other words, the following may be dispensed with in case of teleworking:

  • an agreement with the employer to provide the employee with a means of teleworking;
  • the employer’s risk assessment of the safety of such means of work;
  • the employer’s consent to the employee changing the working conditions applicable to teleworking;
  • conducting a risk and accident safety audit by an occupational safety and health professional, as well as the on-site inspection of the working conditions by the employer’s representative.
  1. The Government Decree also stipulates that in the case of teleworking, the employer must inform the employees concerning the rules of non-hazardous and safe working conditions necessary for working, and the employees must choose the place of work subject to the fulfilment of these working conditions.


Personal Income Tax Act
The Government Decree provides that, from the amount paid to the employees working in the framework of teleworking arrangements pursuant to the provisions of the employment contract as a reimbursement for the expenses incurred in connection with teleworking, the amount agreed upon between the parties in advance but not exceeding 10 percent of the prevailing minimum wage (which is HUF 161,000 in 2020) may be considered as eligible expenses without documentation, provided that the employee did not claim any other expenses in connection with teleworking.
Importantly, this reimbursement amount (HUF 16,100 / month) must be reduced time-proportionately for the number of teleworking days in case the employee did not work in teleworking arrangements in the entire month.
 
Labour Code
The Government Decree seeks to support the current use of teleworking in a single paragraph. During the state of danger, the employee and the employer may deviate from Section 196 of Act I of 2012 on the Labour Code by means of an agreement.  (Section 3)
The abovementioned section of the Labour Code contains the primary rules for teleworking.
This means that the parties may deviate from the following rules in a separate agreement:

  1. Teleworking is an activity performed on a regular basis at a place other than the employer’s facilities, using computers and other means of information technology, where the end product is delivered by way of electronic means.
  1. In the employment contract the parties shall agree on the worker’s employment by means of teleworking.

This part is particularly important because the obligation to set forth this agreement in the employment contract is a much more momentous act of labour law between the parties. At the present time, this can be dispensed with, and it is sufficient for the parties to conclude a separate agreement.
 

  1. Beyond the obligations set forth in Section 46 of the Labour Code, the employer must also inform the employee of the following:
    1. inspections conducted by the employer;
    2. any restrictions as to the use of computing equipment or electronic devices; and
    3. the department to which the employee’s work is in fact connected.
  1. The employer must provide the teleworker with all the information that it otherwise provides to other employees.
  1. The employer must allow the employee to enter its premises and to keep in touch with other employees.

In the current interpretation of the legislation, it is important to underline the fact that in the part on the application of the PIT Act, the Government Decree specifically mentions that the reimbursement of expenses may be paid in case of teleworking pursuant to the provisions of the employment contract, while the part on the application of the Labour Code allows the parties to dispense with the amendment of the employment contract.
For this reason, it is important to pay attention to the fact that those who work in a teleworking arrangement only on the basis of an agreement, without amending the employment contract, cannot claim a reimbursement of expenses theoretically.
However, since an agreement on teleworking is also based on the joint intention of the parties, it may be worth amending the employment contract after all, even if only for a specific, fixed period only. In this way, the reimbursement of expenses can also be claimed.
 
If you have any further questions regarding the above, please contact our colleague directly.

We do hope that we could be at your service with this information. Should you have any further queries, please feel free, to contact us!

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