In its social protection package, the legislator had included a new provision in § 14 (4) of the German Working Hours Act [Arbeitszeitgesetz – ArbZG] which makes it possible in exceptional emergencies with a nationwide impact, particularly in epidemic situations of national significance, to permit changes for certain work of employees for a limited time period as exceptions to the existing working time regulations.
On this basis, the German Federal Ministry of Labor and Social Affairs [Bundesministerium für Arbeit und Soziales – BMAS] issued an Ordinance on Deviations from the Working Hours Act on grounds of the COVID-19 Epidemic (“COVID-19 Working Hours Ordinance”) [Verordnung zu Abweichungen vom Arbeitszeitgesetz infolge der COVID-19-Epidemie (COVID-19-Arbeitszeitverordnung)] of 7 April 2020 (https://www.bmas.de/SharedDocs/Downloads/DE/PDF-Gesetze/arbeitszeitverordnung.pdf;jsessionid=4ADACBA4B0AD037285E3F5FB74786EBF?__blob=publicationFile&v=2). The Ordinance was announced in the German Federal Gazette [Bundesanzeiger] on 9 April 2020 and then entered into force on 10 April 2020.
1. Scope of the Ordinance
In material terms, the Ordinance applies exclusively to certain work activities defined in § 1 (2) of the COVID-19 Working Hours Ordinance. These include the production and transport of goods for daily use, medical products and medicines, work in health services, fire brigades and civil defence, work to maintain public safety and order, and work at authorities and energy suppliers.
The exemptions from the provisions of the ArbZG specifically permitted by the Ordinance are initially for a limited term of until 30 June 2020. The Ordinance expires one month later, on 31 July 2020. This is to ensure that, for example, rest periods to be granted in compensation for reduced rest periods can be granted within the term of the Ordinance.
2. Subject matter of the Ordinance and changes in the legal situation
The Ordinance permits exceptions to the provisions of the ArbZG for certain work activities with regard to maximum working hours, minimum rest periods and work on Sundays and public holidays.
2.1. Maximum working hours (§ 1 (1), (3) COVID-19 Working Hours Ordinance)
The Ordinance stipulates that the working day may be extended to up to 12 hours per day in the relevant areas of work, unless this extension of the working day can be avoided through organisational measures.
Accordingly, the employer first has to check whether the overtime cannot be avoided by other measures, such as the deployment of suitable employees. A decisive factor for the extension of individual working time is explicitly that these are activities carried out because of the corona pandemic.
If the working day is extended, the weekly working time fundamentally may not exceed 60 hours. This can only be deviated from in urgent exceptional cases, where the extension of the weekly working time cannot be avoided through organisational or personnel management measures. The requirements for exceeding the weekly working time of 60 hours are thus more restrictive than those for exceeding the working day.
The requirement of rest periods to be granted in compensation pursuant to § 3 sentence 2 ArbZG remains directly linked to the extension of the working day. This means that working hours can only be extended if the working day does not exceed an average of 8 hours (i.e. 48 hours per week) within 6 months. Corresponding rest periods must be granted in compensation.
2.2. Minimum rest periods (§ 2 COVID-19 Working Hours Ordinance)
The Ordinance also provides that the rest periods to be observed can be reduced from 11 hours by up to 2 hours to 9 hours for the specified work activities. The reduction must be necessary in concrete terms in order to guarantee the objectives of the Ordinance. Here too, the decisive factor for the reduction of the rest period is that these are work activities which are carried out because of the corona pandemic.
In order to protect the health of workers, the reduced rest period must be compensated within 4 weeks, if possible by granting days off, otherwise by extending other rest periods to at least 13 hours in each case.
2.3. Work on Sundays and public holidays (§ 3 COVID-19 Working Hours Ordinance)
In order to guarantee the supply of the population in all existential areas, employees may now be employed with the specified work activities on Sundays and public holidays as well. This only applies if the work cannot be carried out on work days.
For businesses in the sales sector, one should note that - due to the fact that federal and state laws on shop closing times are not affected by the provisions of the Ordinance - the provisions of the Ordinance only apply insofar as these laws do not conflict with the provisions of the Ordinance.
A corresponding substitute day of rest for work performed on a Sunday must be granted within eight weeks, but no later than by the expiry of the Ordinance on 31 July 2020.
The provisions of the ArbZG regarding Sunday and public holiday work are otherwise to be applied unchanged, which means that 15 Sundays per year still have to remain work-free (§ 11 (1) ArbZG). Furthermore, a compensation period of eight weeks still exists without change for work on public holidays (§ 11 (3) ArbZG).