Work from home after the (official) end of the pandemic
A work-from-home arrangement under Article 68 of the Employment Relations Act (“ZDR-1”) is an agreement to change the place of work. While during the pandemic, it was usually a temporary change of the place of work (pursuant to Article 169 of ZDR-1), this article focuses on a more permanent and agreed change of the place of work, whereby the parties agree to a work-from-home arrangement on a regular or periodic basis.
The place of work is one of the mandatory elements of the employment contract, but the law requires that a change of place of work requires a new employment contract. The legislator justifies the requirement to conclude a new contract on the grounds that it is such a significant change in the conditions of employment that an “addendum” is not sufficient for it to be valid. We cannot agree with this view and hope that the legislator will abolish the unviable requirement to conclude a new employment contract in the future.
The (new) contract should specify the extent to which the worker will work from home (all or only on certain days) and other related issues, including how working time will be recorded. The employer may decide to lay down the general rules on work from home in a company by-law applicable to all employees.
The employer’s obligation under Article 70 of ZDR-1 to provide the worker with safe working conditions at home, as it would otherwise be obliged to do on its own premises, is also linked to the place where the work is carried out. The employer must update the safety statement with a risk assessment of the risks associated with working from home and verify, with the assistance of occupational safety experts, that the worker has adequate conditions for safe and healthy work at home.
The update of the safety statement is also necessary because of the employer’s duty to inform the labour inspectorate of the intended work from home arrangements before the worker starts work. Employers registered in the Business Register of Slovenia must submit the notice to the inspectorate electronically via the business support information system (the so-called SPOT point). In addition to general information about the employer and the worker, the system must be used to enter the title of the worker’s job with a short description of the work, the work resources and equipment, the intended duration and the intended proportion of working time from home, and the potential risks to the worker’s health and safety when working from home. Under the Law on Additional Measures to Prevent, Mitigate, Control, Recover and Eliminate the Consequences of COVID-19 (“ZDUPŠOP”), the work-from-home notice regime has been extended until 31 December 2022.
In addition to the above, employers must also provide workers with adequate compensation for the use of his or her own resources when working from home. In regards to the amount of the allowance, the Employment Relations Act only provides that it must be regulated in the employment contract; however, in practice, employers are guided in setting the allowance amount by the provisions of the Income Tax Act (“ZDoh-2”). ZDoh-2 stipulates that the allowance is not to be included in the tax base of income from employment if it is determined by special regulations or pursuant to a collective agreement or an employer by-law, and the resources are typical, necessary and customary for performing the work in question. In this case, the allowance shall be set based on a calculation of the real costs, up to a maximum of 5% of the employee’s monthly salary and up to a maximum of 5% of the average monthly salary in Slovenia. Please note that employers are also required to pay the allowance if it provides the worker with certain resources for working from home (e.g. a personal computer), as working from home may cause the employee to incur additional costs for electricity, heating, internet, etc.
Authors: Jernej Jeraj, partner and Eva Jean, Associate
