Restrictions on the free movement of people caused by the covid-19 pandemic have affected virtually every country in the world and have had implications for the procedures otherwise used to apply EU coordination regulations. For this reason, all Member States have agreed on how to temporarily treat telework in a cross-border situation. The Commission for the Coordination of Social Security issued a guideline in May 2020 that a temporary change of performance of activity in a Member State other than the normal Member State of employment due to the covid-19 pandemic would not lead to a change in the applicable social security legislation. From 1 July 2022, this guideline will only apply to cross-border workers, until 31 December 2022.

The Administrative Commission has also published the recommendations contained in Note AC 125/22 REV2 for telework.  This note adjusts the current procedures for determining the country, in which the employee concerned will be insured, under Regulation 883/2004 on the coordination of social security.

What is telework?

Definition of cross-border telework:

• work performed away from the employer’s premises or an establishment, where the same work is normally performed;
• work carried out in a Member State other than that in which the employer’s or self-employed person’s establishment is situated;
• by using information technologies, the worker remains in contact with the work environment of the employer or the enterprise, as well as with stakeholders/clients, in order to perform his/her tasks assigned by the employer or the clients, in the case of self-employed workers.

Significantly, this definition includes only work performed remotely that is the same as work performed on the employer’s or undertaking’s premises. In the case of employment, teleworking always applies by agreement between the employer and the employee in accordance with national law.

Although the note focuses only on employees, the Czech Social Security Administration (hereinafter “CSSA”) specifies that the recommended procedures also apply to self-employed persons in compliance with the relevant articles of the Regulation.

To ensure that workers are not discriminated against according to their affiliation to a particular country's social security system, material has now been published on the correct application of the individual provisions:

Posting

• If a worker is posted abroad to carry out one-off and temporary work, Article 12 of the EU Regulation applies to him. The employee is covered by the social security system of the posting country for 24 months (provided that all the other conditions set out in Article 12 are met).

Example:

• An employee residing in the Czech Republic works at the headquarters of his Austrian employer and subsequently enters into an agreement with the employer to work from home for a period of sudden need (previously e.g. due to government measures due to the covid-19 disease). As long as the employee works remotely from his/her place of residence in the Czech Republic, he/she will continue to be subject to Austrian law under Article 12, provided that all conditions for application are met (the work is performed on behalf of the Austrian employer, etc.).

Concurrence of activities

• If an employee performs work for an employer in more than one Member State, Article 13 of the EU Regulation applies. The Commission guideline recommends a more flexible approach for Member State institutions in the application of Article 13, particularly as regards the interpretation of the substantial part of the activity in the State of residence.
• If the employee does not perform a substantial part of the work in his/her country of residence (working time and remuneration attributable to telework in the country of residence is less than 25% of the total activity), the legislation of the employer’s country of residence can be applied under Article 13 of the EU Regulation.

Example:

• The employee resides in the Czech Republic and works for an Austrian employer. He works partly at his employer’s workplace in Austria and partly remotely from his place of residence in the Czech Republic. The expected scope of activity on the territory of the Czech Republic for remote work is more than 25% of the working time and remuneration.

Under the standard rules for determining Article 13, the employee is subject to the laws of the country, where he or she performs substantial telecommuting activities. In order to preserve the legal certainty of migrant workers and their employers, the flexible approach under AC 122/25 REV2 can be invoked in this case and an exemption from the jurisdiction of the law of the Member State of residence can be claimed under Article 16. The request for exemption must be in the migrant’s interest and must be submitted to the competent institution of the Member State, the legislation of which the person wishes to be subject to.

Autor: Marek Toráč, Vladimír Toráč