Remote Work in Association, Foundation And gGmbH in Germany
Rights, obligations and common mistakes with mobile work arrangements
A staff member at a nonprofit organization asks whether she may work from home two days per week going forward. A colleague announces that he plans to work remotely from his family’s vacation home in Spain for the entire next month. Meanwhile, management is asking: Are we actually required to allow this? And if so, is a brief e-mail enough to set the rules?
Situations like these have become part of everyday working life for many organizations, and remote work is now difficult to imagine the modern workplace without. In practice, the terms home office, mobile work, and remote work are often used interchangeably. From a legal perspective, however, they are not the same. And these distinctions determine which obligations apply to employers, who must pay for equipment, and whether social security or tax issues abroad may ultimately become relevant.
Home office, mobile work, and remote work: What is the difference?
The key distinction lies in the location where the work is performed and the legal classification of that location. The term “home office” itself is not a concept recognized by German employment law or specifically defined by the German legislature. Nevertheless, it has become a common term for describing work performed outside the employer’s premises and may refer to different types of arrangements.
Telework
Telework is regulated under Section 2(7) of the German Workplace Ordinance and refers to a permanently established computer workstation located in the employee’s home. The German legislature refers to these as “teleworkplaces”. The key point is that the employer is responsible for setting up and equipping the teleworkplace, and the work is regularly performed at this fixed location. Certain provisions of the Workplace Ordinance apply to these teleworkplaces, particularly with regard to workplace design requirements.
Mobile work
By contrast, working from home in the form of mobile work is not tied to a specific location. Employees work with a laptop wherever it is suitable at the time – on a train, in a café, or in a vacation apartment. There is no permanently established workstation. The employer is not required to set up or equip the workplace. The Workplace Ordinance generally does not apply because it assumes the existence of a fixed teleworkplace.
Remote work
Remote work is also not an independent legal term, but rather a general colloquial term. It usually refers to “location-flexible work outside the employer’s premises”, often in the sense of mobile work and frequently involving work performed from abroad. From a legal perspective, the specific arrangement is therefore always what matters.
Why the distinction matters: Whether an arrangement qualifies as a fixed teleworkplace or mobile work determines, among other things, which occupational health and safety obligations apply and what workplace equipment must be provided. Employers that use the term “home office” broadly in contracts, even though they actually intend to allow flexible mobile work, create unnecessary legal uncertainty.
What legal framework applies to working outside the employer’s premises?
Employment law protections continue to apply even when work is performed outside the office. Organizations that offer remote work or mobile work arrangements should pay particular attention to the following areas:
- Working hours: The German Working Time Act continues to apply without change. Maximum working hours, rest breaks, and mandatory rest periods (generally eleven hours between two working days) must also be observed when employees work from home. The employer remains responsible for recording working hours.
- Occupational health and safety: The obligation to conduct risk assessments and provide employee instructions continues to apply. The scope of these obligations depends on whether the arrangement involves a fixed teleworkplace or mobile work.
- Data protection and IT security: Personal data must also be protected outside the office – an issue that is particularly important when dealing with sensitive data in social organizations and educational institutions.
- Accident insurance: Statutory accident insurance coverage generally also applies when employees work from home, but only for activities connected with their work. Whether a specific activity is work-related must be determined on a case-by-case basis.
- Employee representation rights: If a works council exists, it has co-determination rights regarding the implementation of mobile work arrangements. Rules and policies should therefore be coordinated with the works council at an early stage.
- Work equipment and costs: Who provides which equipment and whether expenses are reimbursed should be expressly regulated to avoid later disputes.
Is there now a legal right to work from home in Germany?
Many employees ask this question, and many employers worry that they may no longer be able to refuse remote work requests. The legal situation is more straightforward: Germany currently does not provide for a general statutory right to work from home. The German coalition agreement also does not contain any provision introducing such a right. Legislative proposals on this issue that were discussed in the past have not become law.
This means that whether an employee may work from home is generally a matter of agreement between the parties. A right may arise in particular from:
- an express provision in the employment contract or an additional agreement,
- a works agreement,
- a collective bargaining agreement, or
- under certain circumstances, an established practice within the organization.
Conversely, without such a legal basis, an employer generally cannot require employees to work from home or unilaterally order remote work. The employer’s managerial authority generally does not extend so far as to “transfer” employees to their own homes against their will.
Remote work for employees with disabilities
An important special situation concerns employees with severe disabilities: Under Section 164(4) of the German Social Code IX (SGB IX), they may have a right to disability-appropriate employment, which in individual cases may also include working from home – unless this would be unreasonable for the employer or would involve disproportionate expense. Whether such a right exists must always be assessed on an individual basis.
Common misconception: Many employees believe that if working from home is technically possible, they automatically have the right to request it. In reality, it is not sufficient that the work “could also be performed from home.” Without a contractual or collective-law basis, the decision remains with the employer.
Can a right to work from home arise through an established practice – for example, from the COVID-19 period?
A frequent point of dispute is whether remote work arrangements introduced during the pandemic could have created a permanent entitlement to work from home “forever.” The legal concept involved here is an established practice (betriebliche Übung). This refers to the repeated and regular granting of a particular benefit or arrangement by an employer without reservation, from which employees may reasonably conclude that the employer intends to provide it on a permanent basis. If a voluntary benefit is provided over an extended period without any reservation, this may create a lasting entitlement.
With regard to the specific case of COVID-related remote work, some legal commentators argue that working from home during the pandemic was introduced for a specific reason – namely, to protect employees’ health and comply with legal requirements during the public health crisis. This view is based on case law of the German Federal Labor Court, according to which an established practice does not arise if the employer was obligated – or believed it was obligated – to provide the benefit on the basis of other legal grounds, or if the employer intended to provide the benefit because of another legal obligation, even if that obligation did not actually exist. In the context of the COVID-19 pandemic, it is therefore argued that employees would have recognized that remote work arrangements were temporary. Accordingly, there was no apparent intention on the part of the employer to grant remote work permanently and independently of the pandemic.
There is also a fundamental objection: Remote work is not a “benefit” in the traditional sense but rather concerns the way in which work performance itself is structured. Whether the legal concept of an established practice applies in this context at all remains disputed. However, there has not yet been a decision by the German Federal Labor Court specifically addressing whether remote work arrangements during the COVID-19 period created an established practice.
Remote work was regularly tolerated over time
The situation may be different, however, if remote work was regularly tolerated or granted outside the pandemic period over an extended period of time and without any reservations. Courts apply strict requirements in this regard. Simply allowing remote work occasionally or informally is generally not sufficient.
For example, if an organization has allowed its administrative staff to work from home two days per week on a permanent basis for three years, without any written agreement, reservation, or connection to the COVID-19 pandemic, and management now wants to return to fully in-person work, this may create legal difficulties. Organizations that want to preserve the ability to make such decisions in the future should agree from the outset on a clear voluntary nature or revocation provision – drafted clearly and tailored to the specific situation.
Can employees simply work from abroad? What applies in the EU and in Non-EU countries?
“Simply working from abroad” may sound uncomplicated, but it affects several different areas of law. Allowing this without proper review can create undesirable consequences for both employees and the organization itself.
Social security in the EU
Within the European Union (as well as in EEA countries, Switzerland, and the United Kingdom), coordination rules determine which country’s social security system applies to an individual. As a general rule, a person who regularly performs at least 25% of their work in their country of residence may become subject to that country’s social security system, even if the employer is based in Germany.
For the common situation of cross-border telework, a multilateral framework agreement has been in place since July 1, 2023. Under certain conditions, it allows employees to perform up to just under 50% telework from their country of residence while remaining covered by the German social security system. This requires a joint application by the employer and employee as well as an A1 certificate. It is important to note that the agreement only applies between the countries that have signed it and only where the share of telework performed in the country of residence is between 25% and just under 50%. Anyone exceeding this threshold falls back under the general rules. In that case, responsibility may shift to the social security system of the employee’s country of residence.
For temporary stays abroad (“workations”), a posting arrangement may also be considered, for which an A1 certificate must likewise be applied for.
Tax law considerations when working from abroad
Working from abroad may also have tax implications. During longer stays, the right to tax income may partially shift to the foreign country. The relevant factors are the applicable double taxation treaties and the duration of the stay. For employers, the risk of creating a permanent establishment is particularly relevant: Under certain circumstances, an employee’s activities abroad may create a taxable permanent establishment, resulting in additional obligations. This should be reviewed in advance, particularly in cases involving regular or extended periods of work performed abroad.
Special case: Workation
Many employees understand the term “workation” (a combination of the words work and vacation) to mean something very specific: working remotely from a vacation destination abroad for a limited period of time (for example, two or three weeks) while combining work and leisure. A short stay within the EU (as well as in EEA countries and Switzerland) can generally be managed well in all three relevant legal areas if properly prepared:
- Social security: Temporary work performed in another EU country may be treated as a posting arrangement. The employer applies for an A1 certificate, allowing German social security law to continue to apply.
- Tax law: For short stays, the right to tax employment income generally remains with Germany. Under most double taxation treaties, no wage tax liability arises in the country of stay as long as the individual spends fewer than 183 days there during the relevant period, the employer is not resident in that country, and the costs are not borne by a permanent establishment located there. A two-week workation is typically not problematic in this regard.
- Employment law: German employment law continues to apply. As an option, the parties may enter into a written, expressly temporary agreement that clearly addresses working hours, availability, work equipment, data protection, and the one-time, voluntary nature of the workation – the latter being important to prevent permanent entitlements from arising.
The key issue is the distinction between occasional and ongoing arrangements: The longer and more frequently such stays occur, the more likely it becomes that the 183-day threshold, a possible change in social security coverage, or a permanent establishment risk may become relevant depending on the circumstances. For workations in countries outside the EU/EEA and Switzerland, different standards apply. In such cases, residence requirements, work permits, and the existence of social security agreements must be reviewed separately. In short: A short workation within the EU can generally be handled well, but it should not be undertaken without proper preparation.
Common practical errors and misconceptions about remote work
“Home office and mobile work are the same thing.”
Legally, they are not. The distinction determines which occupational health and safety obligations apply and what equipment must be provided.
“Anyone who works from home automatically has a right to do so.”
Without a contractual or collective-law basis, there is no entitlement.
“The COVID-19 period created a permanent right to work from home.”
Remote work arrangements introduced specifically because of the pandemic generally do not create an established practice giving rise to a permanent entitlement.
“A few weeks working abroad are harmless.”
There is no minimum threshold below which an A1 certificate is unnecessary. Even short stays abroad may raise social security and tax issues.
“A short e-mail is enough to regulate remote work.”
Missing or unclear agreements frequently lead to disputes later on, particularly when an employer wants to revoke or modify the arrangement.
Practical recommendations: How to legally structure remote work and mobile work
- Clarify the terminology: Clearly specify whether the arrangement involves a fixed teleworkplace or flexible mobile work.
- Put the agreement in writing: Clearly and comprehensibly define the scope of the arrangement, permitted locations, availability requirements, working hours, termination of the arrangement, and work equipment.
- Include appropriate reservations: If you want to preserve the option of returning employees to regular in-person work, agree on a clear voluntary nature or revocation clause.
- Consider occupational health and safety and data protection requirements: Risk assessments, IT security, and the protection of sensitive data should be addressed in every arrangement.
- Observe employee representation rights: If a works council exists, involve it at an early stage.
- Review work performed abroad separately: Before approving work abroad, clarify social security issues (A1 certificate), tax implications, and – for non-EU countries – residence and work permit requirements.
- Review existing agreements: Update older clauses to reflect current practices and avoid risks arising from interpretation.
Remote work, mobile work, and location-flexible work have become a permanent part of everyday working life. From a legal perspective, however, they are more complex than they may appear at first glance. Organizations that clarify work locations, responsibilities, and international considerations early on and in writing create smoother processes and prevent future conflicts.
How can WINHELLER support you with remote work and mobile work arrangements?
As a law firm with a focus on employment law, a particular commitment to nonprofit organizations, associations, and educational institutions, and extensive expertise in tax law, we understand the practical requirements and often lean structures of nonprofit organizations. Where required, our employment law specialists work closely with colleagues from our tax law and nonprofit law teams to provide comprehensive advice.
We support you, among other things, with:
- drafting legally sound remote work and mobile work agreements, as well as suitable works agreements and internal policies,
- reviewing whether and how existing arrangements can be changed or revoked,
- assessing the employment law, social security, and tax implications of working from abroad and workations – both within the EU and in non-EU countries,
- advising on occupational health and safety, data protection, and employee representation issues in connection with location-flexible work arrangements,
- clarifying claims and disputes relating to remote work, including representation in legal disputes.
Your attorney for remote work in nonprofit organizations in Germany
Do you have questions about how to legally structure remote work, mobile work, or workations? Would you like to know how to introduce flexible work models in your organization in a legally compliant manner or adapt existing arrangements to current requirements? We would be happy to support you with our expertise.
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FAQ | Frequently asked questions about remote work in associations, foundations and gGmbHs
Is there a statutory right to work from home?
No. Germany currently does not provide for a general statutory right to work from home. Whether employees may work from home generally depends on the employment contract, a works agreement, a collective bargaining agreement, or – in exceptional cases – an established practice within the organization.
What is the difference between working from home and mobile work?
From a legal perspective, a distinction must be made between telework (often referred to as “home office”) and mobile work. Telework requires a permanently established workplace in the employee’s home that is set up and equipped by the employer. Mobile work, by contrast, is not tied to a specific location and does not involve a permanently established teleworkplace.
Can permanent remote work create an entitlement for employees?
Under certain circumstances, an entitlement may arise through an established practice. However, remote work provided during the COVID-19 pandemic alone generally does not create a permanent entitlement, because it was typically granted due to health protection measures and legal requirements in place at the time.
May employees simply work from abroad while working remotely?
Not without prior review. Even short stays abroad may have social security, tax, and employment law implications. Depending on the circumstances, this may require, among other things, an A1 certificate and an assessment of the applicable social security and tax framework.
What should a remote work agreement regulate?
A clear agreement should address, in particular, the scope of remote work, the permitted work location, working hours, availability requirements, provision of work equipment, and rules regarding the termination or revocation of the remote work arrangement. In addition, occupational health and safety requirements, data protection obligations, and, where applicable, works council participation rights should be taken into account.