Eu Law Working From Home
If you work in a different EU country from the one where you live and you return to your country of residence daily, or at least once a week, you are a cross-border worker (so-called "frontier worker"). The country where you work is responsible for your social security benefits. Special rules apply to healthcare and unemployment. Find out more under our frequently asked questions.
Eu Law Working From Home
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At European level, telework is regulated through the framework directive and other directives relating to working conditions (such as the Working Time Directive) and occupational safety and health (OSH). But despite this, there is no single, specific piece of legislation in the EU directly related to telework. Instead, it is regulated at national level through statutory legislation, social dialogue, and collective bargaining.
Ireland published its National Remote Work Strategy in January 2021, which in addition to mandating that home and remote work should be the norm for 20 percent of public sector employment and emphasising the right to disconnect, also committed to investing in teleworking infrastructure, such as remote working hubs and the provision of high-speed broadband.
The Slovakian government developed an amendment to Labour Code 31 to establish a new set of rights and obligations of the employee and the employer. This means that a teleworking arrangement requires mutual agreement and a regular pattern. Employers are also obliged to reimburse the employee for increased costs related to, for example, the use of their own equipment while working remotely.
Interestingly, the pandemic has not instigated regulatory changes in any Nordic countries. Prior to the pandemic, most of these countries had implemented teleworking policies based on self-regulation and trust between the employee and the employer, which have been effective throughout Covid-19 and therefore require no alterations.
Amid such a sudden and massive shift in the employment landscape, governments are scrambling to accommodate working from home in their employment laws. Those efforts are largely still in their infancy.
During the pandemic, some countries have recommended teleworking. Others - like Portugal - have demanded it. Most EU countries have specific legislation on remote working, though with different approaches, and others are considering it through amendments, extensions, or conventions.
The technology that enables working from home has also opened the door to abuses, such as drawn-out workdays as staff remain reachable outside their normal eight-hour shift. The consequences may include attrition between work and private life and a sense of isolation.
"The devil is always in the details ... but also in the implementation," said Jon Messenger, a specialist on working conditions at the International Labor Organization (ILO), a United Nations agency based in Geneva.
A poll conducted by TUC in June found that people in the United Kingdom who worked higher-paid jobs were much more likely to have worked from home during the pandemic than those in working-class jobs.
The ability to work from home after the pandemic has become a hotly debated topic in the U.S., with many office workers clamoring to hold on to their newfound flexibility and some CEOs remaining staunchly in favor of a return to offices.
Most American office workers were in for a shock in March 2020 when COVID-19 disrupted the traditional nine-to-five basically overnight, and the debate today in the U.S. between working from home and returning to the office is becoming increasingly heated.
A new survey by McKinsey found that 87% of workers presented with the option to work from home or in a hybrid format are willing to take it. But many employers are still convinced that returning to office is the way forward.
In 2018, 14% of employed Dutch people worked remotely, according to data from Eurostat: the highest rate in Europe and well above the 5.2% average of EU citizens who worked from home. The Netherlands also ranked first in a 2019 survey by British internet service provider Plusnet that listed the best European countries to work remotely, based on factors including the percentage of people currently working remotely, internet quality, and cost of living.
During the pandemic, the Dutch government encouraged businesses to continue allowing employees to work from home. Since January 2022, the government has implemented a reimbursement program for businesses to repay employees who have incurred extra costs from working from home, such as the cost of setting up a home office.
Should the new proposal become law, it would make the Netherlands one of the first countries to require businesses by law to grant their employees the flexibility to choose whether to work from home or in the office, according to Bloomberg. But other countries have already put in place those kinds of protections.
As U.S. companies struggle to entice workers back to offices, the Dutch parliament approved legislation to establish home working as a legal right, setting the Netherlands up to be one of the first countries to enshrine such flexibility in law.
So, why is remote working from a private address in another EU country not covered by the exception rule for employees posted up to 24 months to another member state, cf. Art. 12 (1) in Regulation (EC) 883/2004?
In short, an employee who is posted by his/her employer to another member state up to 24 months continues coverage under social security in the home country, unless that employee replaces another posted employee.
The focus of the posting provision on the existence of a direct relationship between the employer and employees during temporary work abroad is confirmed in the EU Practical Guide on the applicable legislation. Here, the importance of correct assessment of the existence of a direct relationship is stressed through a range of examples when more than one company are involved. Direct relationship is essential to the interpretation and understanding of working on behalf of one's employer!
Furthermore, the Practical Guide, Part I, point 7, stipulates a number of situations in which it is impossible to use a posting provision for social security. Here, a situation in which a person works from a private address or anything that could relate to remote working is not on the list.
In conclusion, there does not seem to be any support for an interpretation of the posting provision in social security that excludes remote working from its application. Even the CoC that confirms the social security position does not define the information in such way that it would exclude remote working.
However, some authorities mention that if the employee has initiated a posting/remote working arrangement then that is the reason to reject coverage under the posting provision in the EU regulation for social security. Again, there is no such requirement in the legislation or elsewhere. It would have been natural to state in the EU Practical Guide on the list of situations in which the posting provision does not apply that if an employee initiates a posting then the provision does not apply, but this is not the case.
The coordination rules in Title II of the Regulation (EC) 883/2004 for social security determine which country is competent for social security. So, the rights to social security in a cross-border situation come from the law itself and not a CoC.
When an employee works in another member state, then that member state is competent for social security unless the employee is covered by an exception rule. To be excepted from the application of social security in the host country an employee must confirm his/her social security position with a valid and correctly issued CoC. So, CoC is issued to confirm the social security position which is determined in the law. A CoC cannot give/deny rights to social security, it only confirms and documents a position determined by the law.
A claim that an employee has to have a contract stating they are working remotely in order to get a CoC does not seem to be aligned with the legislation or the EU case-law. The ECJ has stated and confirmed several times that when determining social security position of a person one must do so accordingly to the actual situation and facts and not accordingly to what is written, e.g. case C-115/11 Format. Should there be any contractual requirement that must be handled within the labour law and not the EU rules for coordination of social security!
In summary, it is difficult to align the views that remote work is excluded from the exception rules in the EU regulation for social security, especially the posting provision, with the legislation, guidelines, EU decisions or EU case-law. There are also elements of discrimination in this approach to remote work because if an employee has/rents a summer home in the member state where he/she works/lives then there is no problem, but if such summer home is in another member state then that excludes them from remaining covered by social security in their home country.
Should the interpretation that remote working is somehow excluded from the exception rules in social security prevail, it could potentially prevent people from working remotely in their home country or another EU member state. It could diminish the compliance level with social security rules, and it could present a significant obstacle to the freedom of movement.
If the EU Commission is right in their recommendations and ambitions for NextGenerationEU that remote working is a significant element for the economic growth in the region, then this interpretation of the posting provision in social security could present a significant obstacle in achieving those goals.