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Germany – Keeping it cool for employees?

Written by
Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
Authors
Markus Janko
Partner - Germany
Kliemt.HR Lawyers
16.07.19
3
As high summer sets in, what are employers’ obligations in dealing with high temperatures in the workplace? This article sets out the situation in Germany.  

36°C and it could get even hotter: that is reality this summer in many parts of Germany. What may sound tempting at first can become a stress test for many employees. Whether in the office or on the construction site, we may long for the sun in one’s free time, but we could do without it during working hours. The higher the temperature rises, the more likely it is that employers will have to keep things cool in the workplace.

Legal situation 

An employer has a duty of care towards employees. The obligation to provide working conditions that do not have a negative impact on health is only generally imposed on employers in statutory regulations, such as the Occupational Health and Safety Act or the Workplace Ordinance. There are no concrete legal requirements. However, the Federal Ministry of Labour and Social Affairs, with the support of various expert representatives, forms a so-called ‘Committee for Workplaces’, which draws up technical rules according to the current state of scientific research with regard to working conditions. They include concrete specifications for room temperature in the ‘ASR 3.5’ regulation.

How warm is too warm? 

In principle, the air temperature in working rooms should not exceed 26°C. This applies regardless of the outside temperature. If increased solar radiation through windows, skylights and glass walls leads to a higher room temperature, suitable sun protection systems must be installed, such as blinds, awnings, reflectors or solar control glazing. If, in addition to the room temperature, the outside temperature also rises above 26°C, further measures should be taken. Examples listed include effective control of sun protection and ventilation equipment or adapting the use of ventilation, but also changing working arrangements. These can include revised working hours (if possible under the terms of the employment contract, e.g. through flexitime regulation or postponement of business appointments, the relaxation of internal clothing regulations or the provision of (additional) drinks.

However, cooling measures are still optional above 26°C. There is only an urgent need for action if the air temperature in the room exceeds 30°C.

According to ASR 3.5, an office with a temperature of 35°C or higher is no longer suitable for work. However, an employee only has the right to refuse work in clearly exceptional cases. Such an exceptional case could only exist if there is an immediate health danger and the employer does not take any countermeasures. If necessary, the responsible occupational health and safety authority can order measures in individual cases. Taking a day off because of the heat without the permission of the boss is not possible.

How should employers deal with legal heat specifications? 

It is true that employers do not have to adhere strictly to the concrete requirements of ASR 3.5, in particular not for room temperatures between 26°C and 30°C. However, in order to avoid being accused of inadequate occupational health and safety measures in the event of a heat-related collapse, compliance with these requirements is recommended. If the requirements of ASR 3.5 are followed, there is a legal presumption that the employer has complied with the statutory occupational health and safety obligations with regard to heat.

It should also be noted that the ASR 3.5 regulation makes it unnecessary to extend operational risk assessments if high temperatures at work only occur for a short time due to the weather and are not necessarily associated with regular work (e.g. through the need for special working or protective clothing, heavy physical work or work involving high heat emissions). Instead, ASR 3.5 replaces such a risk assessment, because danger to health is indicated in the event of the temperature ranges described and appropriate remedial measures are proposed.

Implementation of cooling measures 

Employers are free to choose which concrete measures they want to implement to work against excessively high temperatures. The options mentioned in ASR 3.5 only serve as examples. The works council’s right of co-determination (in accordance with the Works Constitution Act only extends to legal obligations. Because there exist only framework regulations regarding this situation, co-determination only applies to the introduction of suitable measures to counter the heat, not the choice of the concrete means.

In principle, technical and organisational measures should be taken as a matter of priority. Only if these do not provide sufficient cooling should individual-related measures be applied. In exceptional cases, individual protective measures must be taken for particularly vulnerable groups of employees (young people, the elderly, pregnant women, nursing mothers, people with previous health problems) if necessary.

The costs of heat mitigating measures must be borne by the employer. Small consolation: employers can also determine which concrete measures should be taken. This means that in the high summer there is potential to become extremely popular…

Conclusion 

Short-sleeved shirts, no tights, a paddling pool in the social room or ice cream in the afternoon: there are no limits to your creativity as an employer in the fight against heat. The main thing is to make it cool!

However, if you, as the person responsible for occupational health and safety, prefer to use your flexitime hours to spend the day in an open-air swimming pool instead of devising internal anti-heat measures, there is no reason to sweat: simply let yourself be inspired by the many suggestions in ASR 3.5, implement them, and keep a cool head.

With this in mind, have a pleasant summer!