Many Germans fear sitting in the cold in winter. But how much can companies save on heating? And what are the rights of employees working from home? Labor law expert Daniel Hammes answers these and other questions for FOCUS online.
The so-called Workplace Ordinance obliges employers to ensure “room temperatures that are conducive to health” in all work rooms. Of course, the “non-lawyer” thanks you for such an answer, but – and that is what is behind it – it depends on the workplace and in particular whether it is a physically difficult or light activity. The workplace directive has made this a little more practical – to name a few numbers: In offices where work is usually carried out while sitting and with little physical exertion, the room temperature previously had to be at least 20°C. Especially for the coming autumn/winter, i.e. for the period from September 1st, 2022 to February 28th, 2023, this minimum temperature has now been reduced to 19°C by the so-called “Short-Term Energy Security Ordinance”. On the other hand, only 12°C is sufficient in factory halls for particularly strenuous work, which is then, in case of doubt, more pleasant and therefore the “health-friendly” temperature. In between there are various gradations, depending on the severity and type of activity.
Daniel Hammes has been a lawyer at FPS since 2019. He advises and represents national and international companies in all matters of employment law. His main areas of activity include the drafting of employment contracts, the negotiation and drafting of termination and liquidation agreements, as well as the conduct of dismissal protection proceedings. In addition, he advises in particular on the topics of temporary employment and status determination procedures.
Just three years ago I would have answered this question with a simple “yes”. After all, as an employer you naturally have the right to change your office organization. Corona has changed the situation here as well. On the one hand, we regularly have special occupational health and safety regulations in the winter and autumn months that explicitly prohibit employers from employing several employees in one office if physical separation is possible. But even if such a legal ban does not exist, employers are always obliged to protect their employees from health hazards and thus also from infection with Corona. It would be a violation of this obligation to put employees together but at the same time leave offices unused. Health protection comes first here.
In principle, this is not possible. Without a legal basis – e.g. in the employment contract or in a company agreement – you cannot be sent to work from home as an employee. Employers have to provide their employees with a workplace and this includes not only work equipment such as laptops, mobile phones, etc. but also the work space as such. In addition, the inviolability of the home is protected under fundamental rights and employees have the right to keep work and private life separate. So employers cannot access the employees’ apartments, not even to save on energy costs.
Typical lawyer answer: “It depends”. If the employer sets up an office for the employee in the company, but lets him choose where he works – according to the motto: “You can come here every day but also work at home on individual days” – then there is no entitlement. The situation is different if working from home is also in the interest of the employer, for example to save costs. In this case, the employer must contribute to all costs for setting up the home office; i.e. additional costs for electricity, for the equipment of the home office, etc. Flat rates are usually agreed for this, which range from EUR 50.00 to EUR 80.00.
Ultimately, yes, but really only as a last resort. First of all, it must not be a matter of just a slight drop, i.e. the employee cannot of course “drop the pen” as soon as the temperature drops from 19°C to 18.8°C. In addition, the deviation must not only be temporary, for example due to a brief failure of the heating system. Even if the temperature drops significantly for a longer period of time – i.e. a few hours – you should never just go home as an employee. Instead, you must first point this out to your supervisor and ask them to take care of it. However, if the employee is unable or unwilling to remedy the situation, the employee may stop working because the employer does not provide a proper workplace.
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In principle, the minimum temperatures mentioned also apply to pregnant women and employees with chronic illnesses; So there are no special legally defined minimum temperatures here. But: As already mentioned, employers must protect their employees from health risks and therefore also provide them with a – as we say in employment law – a “ suffering-friendly ” workplace. The word may sound nasty, but it still expresses well what is behind it: If an employee has a special physical disposition that means that they cannot work at a “standard workplace” – like their colleagues – without impairments, then this workplace must be individual – just “according to suffering” – to be adjusted. This is also conceivable in the form of an increase in room temperature.
There will be no such controls or penalties. So that there are no misunderstandings: The room temperatures now prescribed in the “Short-Term Energy Security Ordinance” only apply as maximum temperatures in public buildings; must therefore be complied with here. In companies, on the other hand, they only apply as minimum temperatures. This means that private employers can temporarily reduce the room temperature – for example in offices from 20°C to 19°C – without violating occupational safety, but do not have to do so. Accordingly, there are neither controls nor penalties. The “Short-Term Energy Security Ordinance” does not provide for any minimum temperatures for private apartments. Apart from that, state controls of the room temperature would certainly be unconstitutional here – we already spoke about the basic right of the inviolability of the home.