Winter is coming and so is the energy crisis. Electricity and gas are unlikely to be available in the required quantities. The German government has also called on employers to save energy. One effective way to save energy can be to offer employees the option to work from home or to lower the temperature in the workplace. Here we discuss what employers need to consider when saving energy and who bears the costs.
So far, there is no legal basis for employers to introduce home office because of the energy crisis. An announcement made by Labour Minister Hubertus Heil in the summer to this effect has not been implemented. The legal basis for home office can therefore currently only be a (new) collective agreement with the works council or an individual agreement with the employees. A unilateral order for home office on based on the employer’s the right to issue instructions (s106 of the Trade Ordinance) will only be possible in exceptional cases, for example, if office rooms can no longer be heated due to state intervention.
In principle, according to s670 of the German Civil Code, employers must reimburse employees for (additional) costs that are in the employer’s interest. Only in exceptional cases where the home office is purely voluntary do employees have no claim to reimbursement. This is because the employer does not have to bear expenses which are predominantly in the employee’s interests. The highest court in Germany, the Federal Employment Court, has ruled (BAG, judgement of 12 April 2011 – 9 AZR 14/10) that this can be the case if the employee is free to choose where s/he works and a company workplace is also available to him or her.
If home office rules are drafted so that employees have a right to work voluntarily in the home office, but are not obliged to do so, home office work can be considered to be in the overwhelming interest of the employees and meaning employees would have no claim for reimbursement of associated expenses.
For employees, home office offers cost and time savings due to the shorter commute, but also more free time. On the downside, employees may have to accept a higher utility bill. Even if employees were entitled to reimbursement, it would be difficult for them to prove the amount. After all, their own four walls have to be heated anyway. In addition, the employer cannot influence room temperature. Employees who shy away from the possibly higher ancillary costs from home working can always work in the office; the choice is up to employees.
An additional factor to take into consideration is that from 2023, employees will be able to deduct EUR 5 per day from their taxes for up to 200 home office days a year (so up to EUR 1,000 in total).
The basic requirements for room temperature in workplaces are laid down in the Technical Regulation on Room Temperature (ASR A3.5). A minimum temperature of +20°C degrees applies to office activity that is regularly light manual or desk-based work with quiet sitting.
On 1 September 2022, the Ordinance on Securing the Energy Supply via Measures Effective at Short Notice came into force. This prescribes maximum temperatures that may not be exceeded, depending on the type and intensity of activity. However, these temperatures are only obligatory for public employers or if the operating rooms are located in public buildings. A building is public if it is owned or used by a legal entity regulated under public law.
Private employers in private business premises are not bound by these maximum temperatures. However, for the period the ordinance is valid (that is, until 28 February 2023), they may fall below the minimum 20°C temperature specified in ASR A3.5 up to the maximum temperatures of the ordinance.
This exception applies exclusively to workrooms, but not to restrooms or break rooms. If the employer decides to reduce the room temperature in the office to 19°C, the works council may have a right of co-determination. This applies in particular if the health of the employees is affected (s87 (1) no. 7 of the Works Constitution Act) or if the energy management system is suitable in the abstract to control the behaviour and performance of the employees (s87 (1) no. 6 of the Works Constitution Act).
If individual employees find the temperature in the workplace too low, they cannot simply refuse to work. A right to refuse to work is only given if the violations of occupational health and safety are serious; that is, if there is a concrete, substantial health risk for the employees without any scope for remedy. Depending on the temperature, a remedy in these circumstances might include wearing warmer clothing.
Short-time allowance should only be available in exceptional cases; there is no general entitlement to short-time allowance due to the energy crisis. Only in exceptional cases, if the Federal Network Agency were to ration gas and operations had to be shut down as a result, for example, would workers be entitled to short-time allowance. Exorbitant increases in the price of gas and electricity, which make it no longer economically viable to keep machines running, do not entitle workers to short-time allowance. This is considered a general market risk.
However, should the situation deteriorate further, the state could react more flexibly. On 1 October 2022, a law came into force that authorises the federal government to issue special regulations for short-time allowance after 30 September 2022 if necessary. In addition, the provisions of the Short-Time Work Ordinance will continue to apply until 31 December 2022.
As the energy crisis starts to bite, employers should leave it up to their employees whether they prefer to work from home or in the office. A company workplace should always be available for those that choose. In any case, employees are not automatically entitled to have employers bear a share of their increased energy costs. However, it is advisable to talk to employees and find a joint solution. Discussions with employees around energy-saving measures and tips may mean a lower room temperature does not have to be unilaterally enforced by the employer but can be agreed. Ideally, energy savings should be achieved through the joint efforts of the employer and the workforce, so that the worst-case scenario – that organisations have to stop work temporarily – does not happen.
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