Home office and other implications of the impossibility of performing work at the workplace for occupational health and safety reasons

05. 02. 2026

One of the options for addressing the risk of COVID-19 infection in the employer’s workplace is so-called home office, which, under the current legal framework, is derived from Section 317 of the Labour Code. During the COVID-19 pandemic, this option appeared particularly suitable for protecting employees from infection, since dependent work was performed outside the employer’s workplace; this conclusion is also supported by the findings already set out in the previous chapter of this thesis. The discussion in this chapter relates both to situations where work cannot be performed at the workplace for reasons on the employer’s side, and to situations where this is due to reasons on the employee’s side, typically fear for one’s health, or where that employee gives rise to fear for health among other employees at the workplace.

Home office

The home office arrangement may be an appropriate solution not only for employees who have tested positive and are in quarantine, but also for other persons who refuse to work at the workplace because of concerns for their own health or the health of their close relatives. Official Microsoft sources indicate that, during the COVID-19 pandemic, the use of video calls increased up to tenfold, a substantial part of which consisted of use for work purposes.[1] Data from a survey conducted by P&Q Research likewise point to the fact that home office became more attractive than ever before.[2]

The applicability of Section 317 of the Labour Code is broader than merely to home office.[3] It is sufficient that the place of work be any place where the employer does not exercise its immediate influence; this negative condition is fulfilled also where dependent work is performed anywhere outside the workplace, including places other than those in which the employer exercises such direct influence. In this connection, Hloušková speaks of the loss of the element of superiority and subordination.[4] Štefko, in turn, described the regime under Section 317 of the Labour Code as “an employment-law relationship that requires a higher degree of trust between the parties, or alternatively a more detailed arrangement in a collective agreement or in an individual agreement with a home-based employee.”[5] The second condition under the cited provision is the employee’s free choice in scheduling working hours. This condition is linked to the non-applicability of institutes directly tied to employees’ shifts and obstacles to work. If the employee works from home, but not under conditions of free choice in arranging working hours, Section 317 of the Labour Code cannot be applied, and the work will not be regarded as being performed under that special provision, but rather as a standard regime, with the place of work in the employee’s home. This may be the case, for example, where an employee performs work from home in the material sense, but does so on the basis of shifts scheduled by the employer.

In connection with working from home, however, consensus between the employee and the employer is required; accordingly, home office cannot be unilaterally ordered to the employee, nor does the employee have a legal entitlement to work from home. In this context, Government Resolution No. 126/2020 Coll., adopting a crisis measure of 23 March 2020, recommended that employers should allow employees to work from home where they request it.

The issue of working from home is addressed in the above-mentioned Section 317 of the Labour Code, which is very brief and insufficient, and the shortcomings of this legal regulation were revealed by the pandemic itself. A long-discussed deficiency of this regulation concerns, above all, the (non-)applicability of occupational health and safety provisions to home office, since the current legal framework contains no specific rules for such cases, and, de lege lata, the employer is therefore obliged to provide the same degree of health protection to employees working at the workplace as to those working from home, even though the employer’s influence over the working environment in the employee’s home may be significantly limited. Likewise, the current Labour Code does not address the method of determining reimbursement of costs arising from work performed from home, although it must be borne in mind that the employee performs work at the employer’s expense.

With some exaggeration, one might say that the occurrence of a pandemic had already been anticipated in 2016, when the so-called major amendment to the Labour Code[6] envisaged a more detailed regulation of work from home. Under the proposed wording of Section 317(2) of the Labour Code, the employer would have been obliged to reimburse costs associated with communication between the employee and the employer, as well as other costs incurred by the employee in connection with work performance. These costs could have been agreed in the form of a lump sum. The proposed amendment also envisaged an employer’s duty to provide employees with work equipment, or alternatively to reimburse the costs of acquiring such equipment where remote means of communication were necessary for the employee’s work. However, the proposed amendment was not adopted by the Parliament of the Czech Republic.

The reaction in the form of a proposed amendment to the Labour Code concerning home office did not take long, even at a time when the Labour Code was directly confronting the COVID-19 pandemic and when the current wording of Section 317 of the Labour Code again proved insufficient. For this reason, in January 2021 a legislative initiative was launched by a group of Members of Parliament who, by means of a proposed amendment,[7] again sought to modify Section 317 of the Labour Code so that it would better respond to problems connected with the coronavirus. In particular, Section 317(2) was intended to establish the employer’s right to order work outside the workplace in specific situations. Among other things, this right of the employer was to exist where, due to measures imposed by a public authority, work could not be performed by the employee at the employer’s workplace; in such cases, the employer could unilaterally order work outside the workplace for the period strictly necessary. At the same time, the employee was to have the right to request work outside the employer’s workplace, and the employer was to be obliged to comply with such request at least to the extent of one half of working hours in the case of employees under Sections 237 to 241 of the Labour Code. The costs of mutual communication between employer and employee were addressed in the proposed amendment similarly to the aforementioned 2016 draft and could be reimbursed by a lump sum, while such costs could not be included in wages, salary, or remuneration under an agreement. The proposed amendment also envisaged the employer’s duty to ensure suitable technical facilities. Although this solution seemed necessary in light of public pressure and criticism calling for more detailed regulation of work from home, the amendment to the Labour Code was not adopted before the inaugural meeting of the newly elected Chamber of Deputies held on 8 November 2021, which marked the end of the legislative process of that draft amendment. Nevertheless, this unadopted proposal may certainly be regarded as appropriate, as it addressed several practical questions which the current Labour Code leaves unresolved and which must instead be dealt with through interpretation of other provisions, especially the fundamental principles of labour law; explicit regulation of the relevant provisions would have enhanced legal certainty.

Although neither of the proposed amendments entered into force, they may at least be taken into account in the interpretation and application of the current wording of the Labour Code as an expression of the legislator’s intent, since they constitute the only guidance currently provided by the legislative branch with respect to certain partial problems in the area of home office.

Section 2(2) of the Labour Code already provides that dependent work is performed at the employer’s expense and responsibility. The Labour Code contains no more detailed regulation of reimbursement of costs for work performed from home. One must therefore make do with this provision alone; in light of the above principle, it is excluded that the employer should abuse the employee’s work from home by shifting onto the employee the burden of costs that the employee incurs together with household operating expenses. Given the fact that the employee will have to prove the individual costs incurred in connection with performing dependent work, the most suitable solution will likely be to agree on a certain lump sum for the individual costs, which would then not have to be administratively recorded and proved in detail.

Other circumstances associated with the impossibility of performing work at the workplace for reasons of occupational health and safety

Where an employee cannot perform work at the workplace, for whatever reason, and this cannot be compensated even by means of home office, the situation may be addressed by means of institutes that do not require the employee’s consent, as well as by institutes that do require agreement.

Institutes compensating for work at the workplace that are based on agreement

One such institute is unpaid leave, although the employee is unlikely to agree to this in view of the loss of income. The Labour Code does not explicitly recognize this term; in practice, it is derived from Section 199(1) of the Labour Code, which provides that where an employee cannot perform dependent work due to other important personal obstacles to work concerning the employee, the employer is obliged to grant time off, sometimes even with wage compensation. Likewise, an agreement may be concluded regarding the taking of holiday leave, although under certain conditions the employer may also order such leave unilaterally; in that case, however, holiday must be ordered at least fourteen days in advance, which makes this instrument, given its “delayed reaction” in the event of employee disagreement, very inflexible and insufficiently responsive.

Institutes compensating for work at the workplace based purely on the employer’s will

In this context, the situation will typically concern obstacles to work on the employer’s side. Both in theory and in practice, discussions have arisen as to under which category of obstacle on the employer’s side the impossibility of performing work at the workplace due to a pandemic may be subsumed.

In a situation where public authorities, by means of an authoritative decision, impose anti-epidemic measures as a result of which the employer is required temporarily to reduce or suspend operation at the workplace, the situation might appear somewhat analogous to that which Section 207(b) of the Labour Code describes as a natural event. This follows from the definition of a natural event in the judgment of the Supreme Court of 29 January 2008, Case No. 25 Cdo 529/2006, which defines such an event as “an event caused primarily (though not exclusively) by external natural forces, which could not have been prevented by the operator and could not objectively have been averted, even with the exertion of effort that could reasonably have been expected.” For this reason, the pandemic might also be subsumed under the cited definition. However, Section 207(b) must be interpreted in light of its purpose and intent. Under Section 41(4) of the Labour Code, the employer may transfer an employee, even without the employee’s consent, for the period strictly necessary, to different work than agreed, if this is necessary in order to avert an extraordinary event, a natural event, or another threatened accident, or to mitigate their immediate consequences. The Labour Code defines neither extraordinary event nor natural event, and these terms are often interchanged in legal regulations and used as synonyms. These events nevertheless share common essential features that characterize them to a considerable extent, and without those features they cannot be regarded as natural or extraordinary events. They involve an event caused by external influences, typically natural forces, which the employer could not affect, and which requires an immediate response by the employer; for these purposes, the employer may transfer employees to other work that must be performed in view of the consequences of the natural event, even without their consent, although employee consent is generally required for transfer to different work. For this reason, I am of the opinion that this provision will not be applicable to cases of pandemic, given the lack of the element of sudden natural disaster requiring immediate response and capable of being dealt with by the employer’s own forces.

Under Section 207(a) of the Labour Code, where an employee cannot perform work because of a temporary disruption caused by a breakdown of machinery which the employee did not cause, by a shortage in supplies of raw materials or power, by defective working materials, or by other operational causes, this constitutes downtime. One can certainly imagine many situations in which, due to complications associated with the pandemic, production is limited, for example because a supplier fails to deliver raw materials. In this connection, Vrajík gives the example where “the employer needs input raw materials from abroad for the production of its products and the factory supplying them is temporarily closed due to the pandemic.”[8] In such a case, the employee may also be transferred to other work, but only with the employee’s consent.[9] If the employee does not agree, the employee is entitled to wage compensation in the amount of 80% of average earnings.

Section 208 of the Labour Code leaves room for other obstacles on the employer’s side not listed in Sections 207 or 209. In its position statement,[10] the Ministry of Labour and Social Affairs concluded that a pandemic cannot be regarded as a so-called natural event, but rather as an obstacle on the employer’s side falling under the category of other obstacles pursuant to Section 208 of the Labour Code. I agree with this conclusion, and one may also support it by the argument that, in the case of such other obstacles on the employer’s side, the employee is entitled to wage or salary compensation in the amount of average earnings, which appears to be the most appropriate solution given the number of subsidy programs created in connection with the pandemic.[11]

There is, however, also a view that a pandemic, because it threatens life and health, cannot be classified as another obstacle under Section 208 of the Labour Code, since other obstacles include only those that do not threaten life and health.[12] It is, however, appropriate to note that the current Labour Code does not specifically provide for obstacles to work relating exclusively to the protection of life and health; it is therefore not possible to argue that, due to the threat to life and health, a pandemic cannot be regarded as another obstacle on the employer’s side, and I cannot agree with that opinion. The above applies not only to situations where the employer is required to respect authoritative decisions of state authorities, but also to situations where the employer decides, on the basis of its own managerial decision, to restrict or close the workplace.

Partial conclusion

It is evident that the current regulation of work from home is insufficient, and in the context of a pandemic it is necessary to develop individual rights and obligations through interpretation. In general, however, it may be said that, in light of the employer’s interest in proper work performance and the employee’s interest in the protection of life and health, the most suitable option is work from home. If the parties to the employment relationship do not opt for this variant, the situation must be addressed either by an agreement on taking holiday leave or by unpaid leave. Where no agreement is reached, one must resort to the regime of obstacles on the employer’s side under Section 208 of the Labour Code, together with the associated wage compensation.

This article is written according to the legal framework as of 1 January 2022.

Citace:

^[1] SPATARO, Jared. Remote work trend report: meetings. microsoft.com, 9. dubna 2020. Dostupné z: https://www.microsoft.com/en-us/microsoft-365/blog/2020/04/09/remote-work-trend-report-meetings/.

^[2] Jak často se během pandemie využívá práce z domova? zivotbehempandemie.cz, Dostupné z: https://zivotbehempandemie.cz/home-office.

^[3] V ustanovení § 267 odst. 2 zákona č. 65/1965 Sb., zákoník práce, jakožto předchozí úprava ustanovení § 317 ZP byl výkon práce z domova definičním znakem ustanovení.

^[4] HLOUŠKOVÁ, Pavla, HOFMANNOVÁ, Eva a kol. Zákoník práce: prováděcí nařízení vlády a další související předpisy s komentářem k 1.1.2021. 14. vydání.  Olomouc: ANAG, 2021. s. 485.

^[5] ŠTEFKO, Martin. § 317 [Výkon práce mimo pracoviště zaměstnavatele]. In: BĚLINA, Miroslav, DRÁPAL, Ljubomír a kol. Zákoník práce. 3. vydání. Praha: C. H. Beck, 2019, s. 1254.

^[6] Parlament České republiky, Poslanecká sněmovna. Sněmovní tisk 903/0 Novela z. - zákoník práce – EU. 2016. Dostupné z: https://www.psp.cz/sqw/text/tiskt.sqw?O=7&CT=903&CT1=0.

^[7] Parlament České republiky, Poslanecká sněmovna. Sněmovní tisk 903/0 Novela z. - zákoník práce - EU. 2021. Dostupné z: https://www.psp.cz/sqw/text/tiskt.sqw?O=8&CT=1167&CT1=0

^[8] VRAJÍK, Michal. § 207 [Prostoje a přerušení práce způsobené nepříznivými povětrnostními vlivy]. In: VALENTOVÁ, Klára, PROCHÁZKA, Jan a kol. Zákoník práce. 1. vyd. Praha: C. H. Beck, 2018.

^[9] Ustanovení § 41 odst. 5 ZP.

^[10] Ministerstvo práce a sociálních věcí. Pracovněprávní desatero boje s koronavirem. Mpsv.cz, 20. března 2020. Dostupné z:

https://www.mpsv.cz/documents/20142/1443715/pracovnepravni_desatero_boje_s_koronavirem_2_4_2020.pdf/.

^[11] Např. tzv. program antivirus dle usnesení vlády č. 353 ze dne 31. 3. 2020, o Cíleném programu podpory zaměstnanosti.

^[12] PICHRT, Jan, BĚLINA, Miroslav a kol. K některým specifickým otázkám překážek v práci v době koronaviru aneb je možné považovat pandemii za živelní událost ve smyslu pracovního práva? ePravo.cz, 20. března 2020.

Dostupné z: https://www.epravo.cz/top/clanky/k-nekterym-specifickym-otazkam-prekazek-v-praci-v-dobe-koronaviru-aneb-je-mozne-povazovat-pandemii-za-zivelni-udalost-ve-smyslu-pracovniho-prava-110851.html.

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