Legislator raises to 31.07.2020 permissible daily working time to 12 hours
Working hours are clearly regulated in Germany. Due to the corona crisis, the legislator makes an exception and extends it to up to 12 hours per day. Image: adrian_ilie825/stock.adobe.com
In certain areas, workers are now allowed to 31.7.2020 to be employed 12 hours a day. Rest time reduced from 11 to 9 hours. An overview of the new legal regulations is provided by Hamburg-based employment law specialist Prof. Dr. Michael Fuhlrott.
The protection of employees is an essential principle of German labor law. The mandatory requirements also include, in particular, the requirements for working hours, which are regulated in the Working Hours Act (ArbZG). According to this, in principle no more than 8, exceptionally up to 10 hours per day may be worked (§ 3 ArbZG).
After work, the employee must have a rest period of 11 hours, within which he may not work (§ 5 para. 1 ArbZG). Work on Sundays and public holidays is also generally prohibited (§ 9 ArbZG), only in certain industries such as z.B. in the guarding trade, on fairs or in leisure facilities may be worked on these days (§ 10 ArbZG).
These regulations of the ArbZG are binding. Deviations are not allowed. Only in exceptional cases may authorities grant an exception (§§ 14, 15 ArbZG). Deviations on a small scale are also possible via collective agreements (§ 12 ArbZG).
Employers and employees can’t deviate from these rules – even if both sides want to. "Voluntariness is a difficult concept in labor law," says Fuhlrott. "Does an employer require overtime or. work even on Sundays or up to 12 hours a day, an employee in the probationary period in particular will think twice before refusing this request for voluntary extra work," Fuhlrott knows.
Changes in times of the coronavirus
The strict working time regulations cannot always be complied with in the current situation, where there may anyway be staff shortages due to sickness absences or z.B. there are also changes in the purchasing behavior of customers, which present food retailers or logistics companies with special requirements.
As a result, lawmakers have already taken action with the Social Protection Package (Law for Facilitated Access to Social Security and the Deployment and Protection of Social Service Providers Due to the SARS-CoV-2 Coronavirus) of 27.3.2020 into the ArbZG an exception regulation inserted (§ 14 exp. 4 ArbZG new version), which allows the Federal Ministry of Labor and Social Affairs (BMAS) to provide for more extensive exceptions to working time law by way of a statutory order.
COVID-19 work hours ordinance in effect in the meantime
In the meantime, the BMAS has issued such a legal ordinance (Ordinance on Deviations from the Working Hours Act as a Result of the COVID-19 Epidemic, in short "Covid-19 Working Hours Ordinance"). "The prescription is valid for a limited time until 31.7.2020. But an extension of the prescription can also take place if the supply situation requires it," says Fuhlrott.
According to the ordinance, until 31.07.2020 allowed:
- Extension of the working day working time up to 12 hours (§ 3 para. 1 S. 1 Covid-19 Work Hours Ordinance)
- Extension must be due to COVID-19 epidemic and necessary to maintain public safety and order, health care and nursing care, services of general interest or to provide the population with existential goods (§ 3 para. 1 S. 3 COVID-19 Working Hours Ordinance)
- Restriction to certain industries such as z.B. Manufacturing, packing, delivering, putting away of goods for daily use, medicines, disinfectants, medical care and nursing, utilities, agriculture and animal husbandry, operators of data networks and data centers (§ 3 para. 2 Covid-19 Working Hours Ordinance)
The rest period may be extended for employees in these areas by 11 hours cut to 9 be worked (§ 2 Covid-19-Working Hours Ordinance) and also on Sundays and holidays (§ 3 Covid-19 working time ordinance). Moreover, these exceptions are only valid until the 30.6.2020 allowed (Section 4 Covid-19 Work Hours Ordinance).
Consequences for employees and companies
"Employees who work in these areas and are subject to the regulation, therefore, may be instructed by their employer to work now 12 hours / day," said Fuhlrott. "Prerequisite, however, is that the employment contract permits overtime in principle. However, this is a Standard clause, which can be found in almost every employment contract", says Fuhlrott. Those who fail to comply with an appropriate order thus risk labor-law Consequences up to the loss of his job because of refusal to work.
Even an existing Works Council is to be involved, since the change in working hours is subject to co-determination rights pursuant to Works Constitution Act (BetrVG) triggers. According to this, the temporary reduction or extension of working time is subject to participation, § 87 Abs. 1 No. 3 BetrVG. "Another question is whether the overtime must also be remunerated. As a matter of principle Overtime not be provided free of charge." Fuhlrott. "Whether the Compensation but by financial compensation or Time off compensation is the responsibility of the employer. Some contracts also provide for lump-sum compensation for overtime to a certain extent. Such clauses can be effective if the lump-sum compensated overtime is limited," says Fuhlrott.
Fuhlrott recommends that employers and employees at Ambiguities to seek legal advice on the permissible working time or remuneration issues related thereto, whereby he u. a. for this purpose also refer to the VDAA Verband deutscher ArbeitsrechtsAnwalte e. V. refers. (ag.)