The new reality of a state of emergency poses numerous challenges for employers regarding productivity, security and personal data.
Just two weeks ago home office was simply one of the flexible mechanisms for organizing the work process. It was used periodically, mainly by big companies and as a bonus for employees – you do not have to commute to the office, you have greater work time flexibility and less work-related stress.
Today, in the current situation in the country which has entered a state of emergency due to the pandemic of COVID-19, home office has transformed into a tool for protecting the health and safety of employees. It has also become a necessity for the continuance of company activities.
This new reality poses numerous challenges to employers regarding productivity and effectiveness of remote work, protection of sensitive information and personal data, as well as trade secrets, and overall securing the rights of employees while monitoring the execution of their duties.
What is home office?
Legally, the work through ‘home office’ is regulated by Part VIIIb of the Bulgarian Labour Code (“Additional Conditions for Remote Work”). The Labour Code defines ‘home office’ as a form of organization of the work process. However, not all businesses can benefit from remote work, which only benefits for those, who mainly complete their work in a way, which can be ensured through technologies. It is obvious that a manufacture worker cannot possibly fulfil its duties from home. Employees who perform intellectual work, on the other hand, can work remotely – such is the case for accounting services, activities in the media, translation services, consulting, etc.
The notion of home office is not to be confused with that of household services. Household services consist of performing duties in relation to fabricating goods or delivering services in the home of the worker/employee or at any other premises of its choosing. Household services imply that the worker/employee unilaterally determines the beginning, end and organization of the working time, as well as the distribution of daily breaks within the daily working time and the weekly rest. What matters for the employer in this case is that a certain quantity of goods be served or that a specific task be completed.
On the other hand, in the case of home office, the working hours correspond to the duration of the working time applicable to employees working on the business premises. The employment contract does not therefore hold the employee to the execution of a given order, but to the carrying out of a specific activity for the contractual working time.
Both the employer and the employee can make suggestions as to the organization of the remote work process. Passing tot home office can be done by mutual agreement and not unilaterally (upon demand of the employee, for instance). The order for assigning and reporting for duly accomplished work, as well as its content and volume, are determined at the moment of signing the employment contract, through appendices or by order from the employer.
The Labour Code does not set out any temporal limit for performing work remotely from one’s home. The duration of this form of work depends on the provisions of the employment contract, as well as on the internal rules pertaining to the organization of the work process.
What rights and duties does the employee have when working remotely (home office)?
Any labour provided remotely, through home office, is deemed equivalent to the labour provided on the business premises. All employees, regardless of whether they are working from home or at the office, are subject to the same working standards in terms of workload and carrying out of their obligations. The rights of employees working from home include:
• The rights related to the organization of work and the right to a healthy work environment, equivalent to those existing to the benefit of employees working at the business premises;
• The right to allocate their breaks during the day;
• The right to take a leave according to the type and duration under the rules of the Bulgarian Labour Code;
• The right to remuneration in accordance with the employment contract and the company’s internal rules, as well as the right to additional remuneration (bonuses, etc.);
• The right to equal labour and trade union rights with the employees who work at the premises of the employer;
• The right to receive trainings and be offered opportunities for career development.
The employee has the duty to secure a specific work place in their home (or another premise chosen by them). If the employment contract does not expressly provide that the employee shall use their own equipment, then the employer must provide such equipment, the proper storage and use of which is under the employee’s responsibility. The employee who works remotely must comply with the company’s policy pertaining to work organization and healthy work environment and has the duty to report on the accomplished work.
What are the employer’s obligations?
The employer has the duty, at his expense, to provide his employees with everything that is necessary for carrying out the assigned work remotely, including all equipment and supplies, technical support, personal data protection, etc. He must inform his employees about the requirements for labour and specifically those relating to a safe working environment, as he is liable for the working conditions. The employer also must secure the employees’ access to the company’s information and to secure communication between people in the team so that a possible isolation of those who work from home is avoided.
Which are the main challenges for organizing home office?
One of the main concerns of employers is the drop of productivity and effectiveness in remote work. Personal motivation and self-discipline have a critical importance when it comes to home office since the manager has no way of supervising the work process as directly as usual.
The Labour Code sets out minimum reporting requirements – the employees have to report on a monthly basis. However, the business dynamics could hardly rely on a monthly report; employers resort to various systems, applications and protocols in order to track activity and task completion.
A number of companies use software for monitoring their employees’ activity (e.g. Jira Software, WakaTime, etc.). Another possible solution is the remote access to office computers. The latter presents several advantages regarding the secure storage of information – information is stored on a single protected server, instead of multiple personal computers at home.
In some companies, employers monitor the tasks through e-mail communication at the beginning and upon completion of each task. Alternatively, they can do so through files for completed tasks or through daily reports on the workload and the accomplished operations.
It all comes down to the work policy of an employer – the relevant method depends on the negotiations between the parties and the company’s internal rules.
2. Personal data protection
Home office implies handling information remotely. This information includes personal data within the meaning of the Personal Data Protection Act and the GDPR or is a trade secret of the employer. The responsibility for protecting such delicate information lies with the employer, not the employee, regardless of whether the information was treated outside the physical office. The employer is obliged to provide for personal data protection, including the necessary software and access regarding office devices and personal computers of employees, devising rules for processing and storage of data and documents as well as for channels and means of communication, etc.
In case working from home implies handling documents and files on paper, the employer can install surveillance cameras in the employee’s home, but only with the employee’s written consent.
3. Responsibility in the event of work-related injury
Home office is a relatively new phenomenon for Bulgarian business. If indeed occupational accidents benefit from a comprehensive regulatory framework and established case law, things are rather different when it comes to home office. There are numerous uncertainties regarding the manner in which the employer must assess the compliance with the legal requirements on the matter and, specifically, whether an injury qualifies as a work-related injury.
There is significant freedom left for the negotiation of work conditions for home office. This is precisely where the role of the employer becomes critical in setting the ground rules regarding the obligations and responsibilities of both parties, especially in the event of an accident or injury. The employer required by law to provide information to his employees regarding the risks of the workplace, health and safety, as well as specific instructions for using the equipment. Home office gives the opportunity to negotiate the use of personal equipment of the employee. This would lead to transferring all the responsibilities regarding the maintenance of the work equipment and space to the employee.
The current state of emergency has given rise to multiple challenges. The employers are forced to adapt, making quick decisions and taking measures, learning as they go. Despite this situation however, the current circumstances can also prove beneficial. Now is the time for employers to optimize the work process, improve the communication between employees within the team, create centralized systems for exchange of corporate information, etc.
It is of utmost importance that a cyber security assessment be carried out. During the current crisis, businesses are extremely vulnerable to cybercrimes and personal data thefts. The overall tendency is that such crimes gain greater importance and imply ever-growing risks. That is why it is key for employers to undertake actions and effectively prevent such crimes for occurring, as cybercriminals may use the state of emergency to their maximum benefit.