More and more Lithuanian companies offer Workation options as an employee incentive – for some, these are not legally implementable.
One positive aspect that remains from the Corona pandemic is the openness of more and more companies to give their employees the option not only to work from home more flexibly, but also to work from abroad on their own initiative (so-called “Workation”).
More and more often, explicit reference to this possibility is visible in job advertisements by Lithuanian employers.
However, in addition to labour law, tax and social security hurdles, one stumbling block that is often not considered at all or not considered sufficiently is the migration law dimension.
This is not a problem for EU citizens and, generally, also for workers with permanent EU residence status. In general, they can move and work freely within the EU for a certain period.
However, employees from third countries who only have a temporary residence permit in Lithuania are problematic. As a rule, they have the right to travel to other EU countries. However, this does not entail a work permit in another EU country.
A worker who only has a Temporary Residence Permit with a work permit in Lithuania can be sent to Germany by their employer, e.g., for temporary provision of services.
For this, the employee needs a so-called Vander Elst visa for Germany. But the prerequisite is that the employer actually has to provide a service in Germany for which they need the worker.
However, this is not the case with classic Workation, as this involves working abroad on the initiative of the employee – a service in Germany is not provided by the employer.
There is no legal basis in, e.g., Germany, for a third-country national employee to work with a temporary residence permit on Workation. A Vander Elst visa cannot be issued for this purpose. Workation, i.e. work abroad on the initiative of the third-country national worker, is simply illegal.
What does this mean for Lithuanian companies that want to allow workers to go on Workation? It means a two-tier community within the company. On the one hand, there are workers (EU citizens and third-country nationals with permanent EU residence) who, under certain conditions, can be allowed to go on Workation in the EU. On the other hand, there are third-country nationals without permanent EU residence who are completely barred from working in other EU countries.
Employers thus lose an essential motivational tool for these employees and should find other instruments for them.
In any case, employers should refrain from offering Workation to third-country nationals without permanent EU residence on the assumption that it would not be ascertainable by the authorities for certain jobs anyway. It would be verifiable at the latest in the event of a serious accident at work of an employee in a place in another EU country where the employee is not officially allowed to be.
Sources:
- Residence Act of the Federal Republic of Germany;
- Employment Regulation of the Federal Republic of Germany.