The heat is on….are employees entitled to “Hitzefrei”?

The temperature in Germany has been above 25 °C (77°F) for the past few weeks and many employees might wonder whether they are entitled to a day off due to the excessive heat (“hitzefrei” as it is called in Germany). According to Sec. 3 of the Labour Protection Act (Arbeitsschutzgesetz, ArbSchG), the employer is obligated to take the necessary measures to protect the employee’s health and safety in the workplace.

If the employer is not sure which measures he is required to take, he should look into the “Technical Rules for Work Places” (Technische Regeln für Arbeitsstätten, ASR A3.5). According to these guidelines, which are based on scientific findings, the room temperature should not exceed 26 °C (78.8°F). If the temperature is below that, the employer does not have to take any measures. If the temperature rises above 26 °C, the employer should start trying to reduce it, for example by ventilating the rooms in the morning, installing sun-blinds, shutting off unnecessary electrical devices, allowing flexible work time, relaxing the dress code or providing drinking water. If the temperature is below 30 °C (86°F), these steps can be taken; if it rises above 30 °C they should definitely be taken. If the room temperature exceeds 35 °C (95°F), the room is not suitable for work anymore. These guidelines are not legally binding. If the employer follows them, however, he can be sure to also comply with his obligations under the Labour Protection Act.

But what if the employer neglects his duty to create a safe and healthy work environment? Can the employee refuse performance in accordance with Sec. 273 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) and claim “Hitzefrei”? Generally, the answer is “no”. It is true that it is part of the employer’s contractual obligations to reduce health hazards for his employees (Sec. 618 of the German Civil Code in connection with the public labour protection laws). Nevertheless, a right to refuse performance would only exist in extreme cases of heat and when a concrete health risk can be identified, which is very rare in Germany. If the heat is only temporary, the employee would act in bad faith if he refuses to work on grounds of insufficient heat protection measures by the employer (Sec. 242 German Civil Code).