Summer has arrived. Temperatures are rising and there is another heatwave in Northern Europe this week, with maximum temperatures up to 40°C and even beyond. This is extreme, but temperatures of 30°C and above are now common, and challenging. But what do employers in Germany have to consider? This article provides an overview.
Is there such a thing as ‘too hot’ in the workplace? There are no legally binding upper temperature limits in Germany. However, the ‘technical rules for occupational health and safety’ contain three reference temperatures during hot summer weather (in ASR 3.5). First, the indoor temperature at workplace should not exceed 26°C. Otherwise, employers ‘shall’ take appropriate countermeasures. If the indoor temperature exceeds 30°C, employers ‘must’ take countermeasures. Finally, if the indoor temperature exceeds 35°C, a room is deemed unsuitable for employees to work in unless particular countermeasures are taken (e.g. protective clothing).
These rules, published by the Federal Ministry of Labour and Social Affairs, are not legal regulations and therefore not legally binding. However, employers are advised to follow them for the comfort of their employees, and to avoid potential liability in the event of an incident. If employers take measures consistent with these rules, it will be presumed that they have fulfilled their duty to reasonably take care of their employees’ health and safety.
First of all, employers must ensure that the workplace is safe (s3a of the Workplaces Ordinance, ArbStättV). However, there is no obligation to take specific measures. It is up to the employer to assess existing hazards on particularly hot days and – depending on the conditions at the specific workplace – to take appropriate measures. This makes sense as it makes a difference whether a room faces the sun and whether people are physically exerting themselves in it or not.
The technical rules of occupational safety and health do, however, list examples of possible reasonable measures (in ASR 3.5). These start with organisational measures such as providing free drinks, airing the room in the morning or relaxed clothing rules. In particular, where employees do physical work, it may appropriate to reduce the pace of work, shorten working hours or allow more or longer resting breaks. Technical measures such as the provision of fans or air-conditioning units are also suggested. The costs of any measure are to be borne by the employers, as it is their responsibility to provide for a safe workplace.
Employers should always pay attention to employees with pre-existing health conditions. These include, in particular, pregnant or breastfeeding employees (s 10 ff. of the Maternity Protection Act, MuSchG). Special protective measures for these employees may include, for example, longer breaks.
Overall, in the absence of detailed mandatory regulations, it is ultimately up to employers to decide which measures to take. However, not least for liability reasons, employers should develop a coherent overall concept.
If there is a works council, it must usually be involved in ‘heat protection’. For example, the Federal Labour Court (BAG) has ruled that the leeway employers have in deciding on heat protection measures is potentially subject to co-determination (BAG of 18 July 2017 – 1 ABR 59/15). This also applies to the risk assessment that precedes these measures. In addition, when working hours or break times are temporarily changed, the works council will have a say as well.
But from a practical point of view, it is also advisable to get the works council on board. Severe heat has an impact on general wellbeing and thus also on job satisfaction. It is of particular value if appropriate measures are not only taken but also convincingly communicated to the workforce. This is where the position of the works council can be influential and, if properly handled, helpful to the employer. If, on the other hand, the works council feels disregarded, there is a danger that measures taken will be criticised in its communication with the workforce and as a result, satisfaction among the workforce will decline.
If employees work outside the employer’s premises, for example from home or any other location chosen by the employee (‘mobile work’), the requirements are generally less strict. Even if it is a so-called ‘teleworking workplace’ (i.e. a permanent workplace in the employee’s home for which the employer provides, among other things, office furnishings), the Workplace Ordinance only applies to a less strict extent. This also makes sense, as employers’ ability to determine working conditions outside their premises is often limited.
However, the general understanding is that at a minimum, the basic obligations of the Occupational Health and Safety Act (ArbSchG) also apply when working off site. If employees working away from the employer’s premises complain about excessive heat on hot days, employers should not simply dismiss this. Where appropriate and possible, these employees should be offered the option of working on-site, where it is usually easier and less costly for employers to provide a cooler and therefore safer working environment.
Heatwaves challenge both employers and their workforce. Employers must take appropriate heat protection measures. They have discretion in choosing appropriate means; however, they also bear the costs. It is advisable to follow the technical rules of occupational health and safety: if indoor temperature rises above 26°C and especially if it is above 30°C, action should be taken.
Employees are not entitled to time off for heat reasons, but when deciding on appropriate responses to hot weather, employers should pay particular attention to employees with pre-existing health conditions, including pregnant and breastfeeding women. Where there is a works council, it must often be involved in heat-related decisions. From a practical point of view, the works council should be brought on board at an early stage to ensure successful communication on heat protection measures with the workforce. Employees who usually work at home or work mobile should, wherever appropriate and possible, be offered the option to work at the employer’s premises on particularly hot days.
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