The place of performance of teleworking
Teleworking means that an employee performs his or her duties outside the employer’s place of work by agreement of the parties. Employee and employer may agree on a specific place of teleworking (e.g. the employee’s home) or that the employee may work in various places (e.g. home, library, café). Teleworking can also mean working in another country.
Teleworking shall be distinguished from business trips. A business trip is a situation where the employer sends an employee to perform work duties outside the place of work agreed in the employment contract. For example, an employee whose place of work is the Tartu office participates in a work meeting in Finland on the instructions of the employer.
Teleworking is based on the agreement of the parties. An employer cannot force an employee to work remotely and an employee cannot demand teleworking.
A teleworking agreement gives the employee more freedom to choose where he or she works, but the employee is still in subordination to the management and control of the employer.
The employee shall also perform the duties assigned to him or her in the case of teleworking and shall be available to the employer if necessary.
A teleworking agreement should be in writing; however, the parties may provide evidence for the agreement in another way. The parties may agree on teleworking in the employment contract or, e.g., in an e-mail exchange. The agreement may be more comprehensive and include all of the above conditions, but it may just allow teleworking, with more specific conditions for teleworking being set out in the organisation of work rules or the collective agreement.
If the parties do not agree on the terms and conditions of teleworking, including the reimbursement of teleworking costs (e.g. the cost of purchasing equipment and adapting the workplace) or if the costs are too high for the employee or the employer, a teleworking agreement should not be concluded.
Teleworking can be performed regularly or in individual cases. An employee and the employer may agree that teleworking means regular absence from the office or a single day of teleworking. For example, an agreement that an employee performs his or her duties by way of teleworking on a daily basis in the home office for six months in a row, or an agreement that an employee performs his or her duties by way of teleworking only once a week.
The employer should agree on the general principles of teleworking with the employee or describe the principles of teleworking in the organisation of work rules so as not to discuss the terms and conditions of teleworking each time before an employee commences teleworking.
In particular, the following should be agreed upon in writing in the teleworking agreement:
1. the place of performance of teleworking:
The employee and the employer may agree on a specific place of teleworking (e.g. the employee’s home) or on teleworking in general (i.e. no specific place is specified). The provided place of work shall be a specific place of work which is not defined too narrowly or too broadly. The law presumes that the place of work is agreed upon with the precision of the local government, i.e. city or rural municipality government (clause 5 (1) 8) and section 20 of the Employment Contracts Act).
2. organisation of work:
Before enabling teleworking, the employer shall consider whether he or she is able to ensure the performance of work tasks, good co-operation with the employee, retention of teamwork, and a safe working environment in the case of teleworking. The following situations should be considered for a well-functioning organisation of work:
- How are duties assigned and monitored and how is communication ensured with the employer and colleagues?
For example, an employee performing his or her duties by way of teleworking performs his or her duties and is available via email, Skype and phone.
- What is the organisation of work of a person performing his or her duties by way of teleworking like? If and how can the employer monitor an employee’s adherence to working hours?
For example, an employee is available to the employer from 8 AM to 5 PM on Monday to Friday, records the start and end times of teleworking and takes breaks. For example, the parties may agree that the employer’s time zone applies to communication with an employee performing his or her duties by way of teleworking abroad.
- If and when is the employee expected to be present at the employer’s premises?
For example, an agreement that an employee performing his or her duties by way of teleworking in Pärnu will come to the Tallinn office on two days a week and participate in customer meetings and events in Tallinn.
On agreement with participants of a meeting, the employee can also participate in the discussion vis a suitable software solution (e.g. Skype).
If the employee can choose when to perform his or her duties by way of teleworking, an advance notice period for teleworking should be agreed on. For example, an employee notifies the employer two days in advance of teleworking.
3. data protection and privacy
For example, when working remotely and choosing a teleworking location, the employee shall comply with data protection requirements, i.e. the employee shall always use screen protection during meetings, shall not process personal data in a public place and shall not use unprotected Internet connection.
4. use of specific work equipment
For example, the employer installs remote management software on an employee’s computer and assists in resolving technical issues. For example, an agreement that the employee returns the work equipment to the employer’s location upon cancellation of employment.
It is also important to preserve work equipment. For example, an employee shall not leave a computer in a visible place in the car where it could be stolen. If the employer’s property, e.g. work equipment, is insured, the employee shall know whether he or she has obligations arising from the insurance of the object.
The occupational health and safety obligations of an employee do not discharge the employer from liability in this field, except in the event that duties are performed by way of teleworking and the employer has performed all the obligations specified in § 135 of this Act.
5. working environment and safety
Even when an employee works remotely, the employer is obliged to ensure safe and healthy working conditions and, if necessary, take into account the specifics of teleworking. The employee is also responsible for making their working environment suitable and comfortable. In other words, a good working environment is the result of cooperation.
Not all work can be performed by way of teleworking. Teleworking could mainly be allowed in positions where the risk to the employee’s health is low (e.g. work with a computer, handicrafts). As it is difficult for the employer to adequately control the employee’s working conditions in a teleworking environment, teleworking should not be performed if special requirements apply to the working environment (e.g. forced ventilation, noise insulation).
6. applicable law and jurisdiction
If an employee performs his or her duties by way of teleworking from abroad, it is also important to define the law and jurisdiction applicable to the employment contract.
The choice of applicable law should be based on the Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and the Private International Law Act.
Pursuant to paragraph 1 of article 8 of the Rome I regulation, an employment contract shall be governed by the law chosen by the parties. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him or her by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of article 8.
Pursuant to section 35 of the Private International Law Act, in the case of an employment contract, a choice of law shall not have the result of depriving the employee of the protection afforded to the employee by the mandatory rules of the law of the state which would be applicable in the absence of a choice of law.
In the absence of a choice of law, an employment contract shall be governed by the law of the state where:
- the employee habitually carries out their work in the performance of the contract, even if the employee is temporarily employed in another state;
- the place of business through which the employee was engaged is situated, if the employee does not habitually carry out their work in any one state.
This does not apply if it becomes evident from all the circumstances that the employment contract is more closely connected with another state. In this case, the law of such other state applies.
Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) governs the jurisdiction of the Member States. In the event of a dispute, an employer can sue an employee domiciled in a Member State only in the courts of that Member State An employee can choose whether to sue an employer in the courts of the Member State in which he or she is domiciled or where the employee habitually carries out work (or if there is no such place, then in the Member State where the company that employs the employee is or was located).
The parties can only conclude an agreement conferring jurisdiction in two cases:
- after a dispute has arisen, or
- if the agreement allows the employee to bring proceedings in courts other than those indicated in the regulation.
You can also find more information on applicable law and jurisdiction in the European Commission’s information material.
Guidelines for the health and safety of employees performing their duties by way of teleworking
The working environment has changed a lot in recent decades. These changes have been shaped by the rapid development of technology and changes in the attitudes of people. Increasingly, employees expect and presume flexible organisation of work and are looking for working conditions that are best suited to their living arrangements. Finding the necessary human resources in the labour market is becoming more and more difficult and requires creative and flexible solutions in the work environment. Therefore, a growing trend among undertakings is to enable teleworking, which helps the employer to find and retain motivated employees.
There are many positive aspects to teleworking, such as better balance between work and family life, cost savings for both the employee and the employer, the creation of jobs in rural areas and more active involvement of persons with a reduced working capacity.
The growth and importance of the spread of teleworking is also revealed by the teleworking framework agreement between the Estonian Employers’ Confederation and the Estonian Trade Union Confederation where the parties agreed on recommended principles for teleworking.
When enabling teleworking, employers shall take into account, from the point of view of occupational health and safety, that teleworking shall also be performed safely and that employees shall comply with occupational health and safety requirements when performing duties by way of teleworking. As teleworking takes place outside the employer’s territory, it is difficult for the employer to check the employee’s actual working environment and whether the employee adheres to occupational health and safety requirements. As a result, employers and employees are often unaware of the responsibilities and rights involved in using this form of work or of what they should negotiate when concluding a teleworking agreement.
This guide is intended to help the parties to an employment relationship and explain how safety can be ensures in teleworking. This is a recommended guidance material and compliance with it does not exempt you from compliance with the law.
The employer is also obliged to conduct a risk assessment of the working environment of teleworking employees. The risk assessment must include potential risks arising from the nature of the work and, taking into account the specifics of teleworking, measures must be taken in order to avoid or reduce the employee’s health risk.
In a situation where the employee teleworks in various places (e.g. at home, in a summer house, in a hotel, in a library, in a café, on a train), the employer is realistically not able to inspect all these places of work or assess their risks on-site. In this case, the employer must determine the potential risks of teleworking in another way, for example by talking to their employee. The purpose of the discussion is to understand which environments the employee teleworks in and which risks these environments may pose.
The employer may also prepare a risk assessment questionnaire, which they use when allowing the employee to telework. If necessary, the employer may also assess working environment risks by way of photos, video recordings or other documents. If the employee teleworks from home, the employer may, with the employee’s consent, determine the risks of the working environment at the employee’s home. However, risk assessment at the employee’s home without their consent is not possible, as the fundamental right to the inviolability of the home protects the home or property as part of the private sphere. Therefore, in cases where the employer is realistically not able to assess the risks in the place of work, the employer and employee must work together to determine the potential risks arising from teleworking (e.g. it is not necessary to measure the risk factor parameters) and, depending on the specifics of teleworking, implement appropriate risk mitigation measures.
There are no special requirements for occupational health and safety instruction in the case of teleworking. The employer is obliged to instruct and train employees before the commencement of work. A few hours may be enough to train an office employee, during which the employee is shown the location of first aid equipment and taught how to set up their workplace. Clear and simple safety instructions are the basis for effective instruction. Drawings and photographs may be used in the instructions to better describe, for example, the proper sitting position.
The instruction of a teleworking employee is especially important because the employer has no way of knowing whether the employee practises what is taught during instruction. Therefore, it is essential that the employee understands the reason behind certain requirements and recommendations.
The employer must also instruct the employee in risks in the teleworking environment and their health impacts as well as measures to prevent health damage.
In the case of teleworking, the employer instructs the employee in:
- hazards related to the teleworking environment;
- health effects of the hazards; and
- measures to prevent health damage.
Depending on the nature of teleworking, it may be necessary to instruct the employee in:
- safety requirements for the work to be performed and for the work equipment to be used;
- ergonomically correct working positions and techniques;
- the use of personal protective equipment;
- electrical and fire safety requirements (e.g. are all plugs in working order to prevent damage to the computer);
- the prevention of environmental contamination; and
- noticing and consciously dealing with psychosocial hazards.
The teleworking employee must also know the contact details of the working environment specialist and the working environment representative (if the representative has been elected). It is especially important to instruct the employee in measures to prevent risks associated with teleworking. After receiving instructions, the employee is able to notice and mitigate the hazards.
Considering that, in the case of teleworking, the employer is unable to monitor whether the employee acts as instructed (e.g. does not change the layout of the workstation after risk assessment), it may be necessary to repeat the instruction. It may be necessary, for example, if significant changes have occurred in the place of teleworking (the teleworking environment has changed, there are new hazards), the duties of the employee have changed, the employee is using new work equipment or technology or the employee has violated occupational safety requirements and it caused or could have caused an accident, including an occupational accident. By repeating the instruction, the employer can make sure that the employee has sufficient knowledge on how to ensure their safety when teleworking.
Instruction and training must be registered in writing or in a form reproducible in writing to ensure that the employer can later prove the provision of instruction and training if necessary. The employee confirms the completion of such instruction and training in writing or in a form reproducible in writing.
More information about the registration of instruction is available at Instruction and training.
The employer may allow an employee to work if they are convinced that the employee is able to apply safe working techniques in practice.
Workstation design and work equipment
The employer is obliged to ensure that the employee has suitable work equipment to perform their duties. The employer is also required to design and furnish the place of teleworking, but the employer and employee may agree that if the employee has a suitable workstation for teleworking (e.g. they have a suitable home office at home, in a summer house or elsewhere), the employer does not have to design the place of teleworking. The employer is also not required to design a place of teleworking that is outside the employee’s place of residence. For example, in a situation where the employee wants to work in a library or café, the employer cannot be expected to design and furnish a workstation in such places. Therefore, if the employer and employee have agreed on teleworking and the employee designing a suitable workstation themselves, the employer is not obliged to design the workstation.
The teleworking workstation is furnished by agreement between the employee and employer. In a situation where neither party is willing to design a workstation suitable for teleworking, a teleworking agreement cannot be concluded.
The employer must organise a medical examination for the teleworking employee in the same manner as for employees working on the employer’s premises. There are no differences between the principles of organising a medical examination for teleworking employees and employees working on the employer’s premises. More information about the organisation of a medical examination is available here.
Acting in the event of an occupational accident and potential occupational disease
Before the start of teleworking, the employer and employee should think about how to act in the event of an occupational accident.
The employee involved in the occupational accident during teleworking must immediately inform the employer of the facts of the accident and explain how the accident is related to the performance of their duties. For example, an accident is considered an occupational accident if the employee was injured at home due to failure of the work equipment. However, an accident that occurred while doing housework at home is not an occupational accident.
The employer is obliged to investigate the causes and facts of every potential occupational accident, even if the accident occurred at the employee’s place of teleworking. The employee must cooperate with the employer during the investigation. This is especially important in the event of an accident that occurred during teleworking, in which case the employer may only be able to get information about the accident from the employee’s explanation. If the employer is not allowed to investigate the accident at the scene, it may be more difficult for the injured employee to prove that the injury occurred as a result of an occupational accident.
More information about the investigation of occupational accidents is available here.
Also, teleworking employees may develop an occupational disease if their health has been affected by hazards in the teleworking environment which are associated with the work. The fact that the occupational disease did not develop on the employer’s premises but at the place of teleworking does not release the employer from the obligation to ascertain the causes and circumstances of the occupational disease. If the employee does not allow the employer to investigate the occupational disease at the place where it developed (e.g. at home), it may be more difficult for the employee to prove that the occupational disease was caused by the working environment or the nature of the work.
More information about occupational diseases is available here.
The employer is obliged to pay the employee sickness benefit even if they work remotely.
More information about the payment of sickness benefit is available at Tervisekassa.ee.
In addition to the aforementioned obligations of the employer, the Occupational Health and Safety Act sets out numerous obligations which the employer cannot fulfil due to the specifics of teleworking or which they are able to fulfil to a limited extent. For example, the employer is obliged to ensure that the workplace has a first aid provider and first aid equipment, but in the case of teleworking, the employer cannot ensure the availability of a first aid provider. However, the employer can instruct the employee on how to act in the event of an accident and, if necessary, provide them with first aid equipment that the employee can use in the event of minor accidents.
Another example is the employer’s obligation to ensure suitable non-work rooms and their good condition, which they cannot do in the case of teleworking.
Obligations that are not described above must be fulfilled by the employer as much as the nature of teleworking permits. Therefore, the employer must consider whether the fulfilment of the remaining requirements is possible and reasonable, and in what way.
Obligations of the employee
In addition to other occupational health and safety obligations, a teleworking employee is obliged to:
- participate in the creation of a safe working environment by following occupational health and safety requirements; and
- design a safe teleworking workstation and working conditions based on the employer’s instructions.
As teleworking limits the employer’s opportunity to ensure and supervise occupational safety at the place of teleworking, the employee has a greater responsibility for ensuring their safety compared to when they work on the employer’s premises. If the employee and employer have agreed on teleworking, the employee is obliged to design a safe working environment and safe working conditions based on the employer’s instructions.
Responsibility of the employer
The employee’s occupational health and safety obligations do not release the employer from the relevant responsibility. The employer can be exempt from responsibility in the case of teleworking if they have fulfilled all the obligations above and they can prove it. For example, in a situation where a teleworking employee has an occupational accident, the employer must prove in the event of a dispute that they have fulfilled all legal obligations in order to ensure the health and safety of the employee and the accident was caused by the employee’s violation of occupational safety requirements.
Frequently asked questions concerning teleworking
Subsection 6 (4) of the Employment Contracts Act requires that a written agreement signed by both parties is concluded. This can be either an annex to the employment contract or a separate agreement depending on the current procedure for documentation in the enterprise.
The agreement can only be amended on the basis of a new round of negotiations and agreement, meaning the employer cannot unilaterally withdraw from the teleworking agreement. The employer can, however, react to problems arising from teleworking which are related to the quality of work, employee’s absence during working time, unavailability, etc., similarly to problems that may arise in the office. If the employer finds that these problems are related to teleworking, the employee should be notified thereof, the issues should be discussed with them, and a partial return to the office may be offered as a solution. This means that the employer can make a concrete proposal to amend the teleworking agreement.
If the employee refuses this proposal but the problems persist, the employer may warn the employee about the potential cancellation of the employment contract due to a breach of the employment contract by the employee.
It would also be good to agree beforehand on how the teleworking agreement will be amended, for example if the employee is unable to continue to perform telework at the agreed location (e.g. major repairs have started in the apartment building and the continuous noise makes it difficult to focus).
According to subsection 12 (3) of the Occupational Health and Safety Act, an employer and the employees are required to co-operate in the name of a safe working environment. Thus, to assess the risks of the teleworking environment, the parties must agree on how the home working environment will be assessed, whether by using photos or video or maybe the employee will allow the working environment specialist to visit their home. This is where a choice should be made. If the employee refuses all options, they are not co-operating and the employer has the right to refuse to conclude a teleworking agreement.
It is common practice for the employer to send the employee a questionnaire which they must complete and to which photos or videos are added to provide a better overview of the working environment. In this way, the employees make an assessment themselves, for example, whether the lighting is sufficient or not, whether the temperature is suitable for working or not. If the employee answers in the questionnaire that the lighting is not sufficient to carry out their work, the parties will then discuss who will purchase the necessary (additional) lighting fitting. If neither party agrees to purchase the lighting fitting, the teleworking agreement cannot be concluded as the employee does not have adequate working conditions at home.
The photos and video taken for the assessment of the home working environment can be recorded in such a way that the private life of the employee is not infringed or breached. That is why the parties must agree beforehand on how it will be done and to what extent photos/videos are expected. For instance, the requirement of the employer to provide information about all rooms in the house is not justified, it should only be limited to the specific workplace.
It is also not necessary to assess rest or non-work rooms at home because the employer can and should assume that these rooms and opportunities for rest are available at the employee’s home, i.e. a calculated and reasonable solution should be reached.
The Occupational Health and Safety Act does not differentiate between teleworking working environments and other working environments, thus, it is to be assumed based on section 13 that the employer conducts the risk assessment of the working environment of the employee, as people may be affected by different working environment hazards in different workplaces and the risk mitigation options may also be different.
In this case, we follow the principle of business trips. The employer does not assess the risks of the working environment of business trips as its effect on the employee is short-term and the employer’s possibilities of rearranging the working environment are limited. Additionally, the employer does not re-assess the working environment hazards of another company if the work of the employee is related to the provision of a service. Therefore, reasonableness and purpose must be taken into account.
However, a situation may arise where the employee wishes to work in different cafés, i.e. they are not working at the office, at home or a space specially designed for teleworking, but are continuously changing their workplace. This might be a risk in itself and for the mitigation of which the employer can review the employee’s organisation of work, assess its reasonableness and long-term effect on the health of the employee and come to an agreement on the proportion of time the employee must spend in the agreed and safe teleworking environment.
Regularly working in a bus, train or another moving means of transport has adverse health effects and is a psychosocial hazard that requires finding a solution and preventing health damage. For example, working this way causes attention and concentration problems, fatigue, sleep disturbances, headaches, potential long-term nausea and other symptoms to develop faster. Therefore, it is reasonable for the employer to restrict working in such a way and to call special attention to potential problems that may arise as a preventive measure.
If the employee performs their work duties at their second home once or twice during summer, there is no need to conduct a separate risk assessment of the workplace at the second home. However, if the employee wants their workplace to be at their second home every Friday from June to August (or longer), the working environment hazards of that workplace must also be assessed in co-operation with the employee and solutions for risk prevention established.
However, the employer can fulfil his or her occupational safety obligations to a certain extent, i.e by doing everything reasonably possible, in particular by identifying the risks in the working environment in co-operation with the employee and instructing the employee on how to mitigate these risks. Before allowing an employee to perform his or her duties by way of teleworking, the employer shall consider the following:
- Have I assessed the risks in the working environment of the employee performing his or her duties by way of teleworking?
- Have I instructed the employee performing his or her duties by way of teleworking to work safely and am I convinced that the employee can employ safe work techniques?
- Have I considered that an employee performing his or her duties by way of teleworking shall undergo a medical examination in the same way as other employees?
- Have I considered that an occupational accident can
Firstly, it is important to find out what is bothering that particular employee and to explore possible solutions, e.g. reminding all employees of the rules of working in an open workroom, installing additional sound-absorbing panels, redesigning workplaces, splitting the working time or the time employees spend at the office, etc.
If the employer has separate workplaces, the conditions for their use can be reviewed so that every employee would have the chance to get away from the open office and use a private workplace or room for a while.
An employee cannot just refuse to work as they have to co-operate with other employees and the employer and, in the fulfilment of their duty of loyalty, they have to take into account the possibilities and needs of the employer. In such a situation, the employer can offer various solutions to the employee. If none of them are acceptable for the employee, this job may no longer be suitable for them, meaning the parties may decide to end the employment relationship.
Bullying occurs if the needs of other employees are met and work is reorganised according to their wishes. However, the wishes of one particular employee are ignored despite their many appeals.
See the general principles of equal treatment on the website of the Equal Treatment Commissioner https://www.toetav.ee/
In this case, the teleworking agreement may not exist because pursuant to subsection 5 (5) of the Employment Contracts Act, the employer must preserve the written employment contract during the term of validity of the employment contract and for ten years after the expiry of the employment contract. Minimum requirements for the retention of documents have been established but, if necessary, the employer may establish longer periods for the retention of documents.
However, working environment documents must still be available because according to the Occupational Health and Safety Act:
- Healthcare providers shall retain medical records for 30 years as of the relevant medical examination and an employer shall retain medical records for ten years after the termination of employment relationship with employees;
- An employer shall preserve risk assessments not entered into the working environment database or prepared before 1 March 2021 for 55 years as of the preparation of the risk assessment;
- The results of a risk assessment of the working environment uploaded to the self-service of the Labour Inspectorate TEIS from 1 March 2021 are retained in the working environment database.
Therefore, the employee can request the teleworking risk assessment to prove work-related damage to their health and the employer must be able to provide that document. The existing judicial practice shows that if the employer does not have these documents, the dispute is resolved to the detriment of the employer because they have not fulfilled their legal obligation.