Best practices in employment law: Home office between flexibility and constraints

This fourth article, dedicated to best practices, explores the right to remote work in response to the growing demand from employees. Many workers now seek greater freedom in choosing their place of work, more flexible working hours, and a better work-life balance, facilitated by modern technology.

However, this shift presents significant risks for employers if they fail to establish clear policies and processes.

Remote work: Common challenges

According to the law, employers are not obliged to allow remote work, although in practice, an increasing number of companies are offering this option to their employees.

However, remote work is often based solely on informal agreements, without clear definitions of its boundaries (e.g. percentage of remote work permitted, location, maximum number of days per year, etc.) within company policies, staff regulations, or employment contracts. Operating in this way—without a thorough assessment of the associated risks—can lead to serious financial (e.g. liability for social security contributions in another country, permanent establishment abroad, implications for tax at source, etc.) and legal consequences (e.g. claims for a right to remote work, obligations regarding employee health and safety, legal issues regarding recording working hours, potential application of foreign employment laws or jurisdiction, etc.).

Additionally, many companies lack a precise understanding of what remote work entails in terms of tax law and social security regulations (e.g. working from home versus working remotely from a holiday destination).

Our recommendations

To ensure compliance and mitigate risks, companies should adopt a structured approach by following these steps:

1. Understand the concept of remote work in both legal and operational terms.

2. Define the ideal framework for implementation, specifying key elements such as:

The number of permitted remote working days.
Regularity and accumulation of remote work days.
Whether employees are allowed to work from abroad (e.g. from a holiday location for a set period).

Many companies also take this opportunity to review and update their employment contracts and policies.

3. Assess restrictions and regulatory requirements, considering employee-specific factors such as residence abroad, frequent business travel, nationality, and part-time status. Companies should analyse their actual practices to determine for example whether:

A maximum number of remote workdays per week or per calendar year should be imposed (e.g. for employees residing abroad or frequently travelling outside Switzerland).
Financial support should be provided for home office setup or other related costs (e.g. if the company no longer provides a dedicated office space).
Remote work should be restricted for certain roles.
Remote work involves risks regarding data security and confidentiality for the company.
The company’s time-tracking system effectively monitors compliance with remote work policies.

4. Formalise the remote work policy in writing, through either:

A unilateral document (e.g. company directive), or
A bilateral agreement (e.g. an addendum to the employment agreement or staff regulations).

5. Implement and communicate the new policies effectively across the workforce. This step may also require consideration of additional legal obligations, such as notice periods for contractual changes or compliance with collective redundancy rules.

How can we help you?

To help manage the risks associated with remote work, we offer:

A comprehensive audit of your existing policies, identifying potential risks and proposing tailored solutions.
Drafting or revising your remote work policy to ensure compliance and alignment with business objectives.
Support with implementation, ensuring seamless integration of new policies.
Internal training sessions to ensure that HR teams have the knowledge and tools to identify and manage potential risks.
Case-specific advice in disputes involving remote work (e.g. reimbursement claims, requests to work from abroad, compulsory affiliation to foreign social security, tax at source implications, etc.), providing strategic guidance to protect your company’s interests.

By taking a proactive approach, businesses can ensure that remote work remains an asset rather than a liability, balancing flexibility with legal and operational security.

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