Reduction of the room temperature in the office rooms
Many employers are currently considering lowering the room temperature in offices for the coming winter. The legislature has already taken action in this regard by introducing the Ordinance on Securing the Energy Supply through Measures Effective in the Short Term (“EnSikuMaV”) on September 1, 2022. However, the rules on office premises set out in such Ordinance only apply to public employers or if the office rooms are located in public buildings. For all other employers, the regulations are initially not binding.
However, private employers may voluntarily deviate from the recommendations on room temperatures (published in the so-called Technical Regulations for Workplaces [ASR A3.5]) until February 28, 2023, and lower the temperature in office rooms from 20 degrees Celsius to 19 degrees Celsius. Toilet and break rooms are not covered by the exemption. Here, the minimum temperature of 20 degrees Celsius continues to apply.
Employees do not have a right to refuse performance on the grounds that the temperature is subjectively perceived as too low. Since the room temperature has only been lowered by one degree, there is no specific and significant health risk and a remedy (such as wearing a warm sweater) is reasonable.
If the company has a works council, it may have a right to participate if the employer decides to lower the room temperature. Such a right of participation exists in particular if the employees’ health is affected (Art. 87 (1) No. 7 BetrVG (German Works Constitution Act)).
Another option may be to order work from the home office or mobile working. There is currently no legal basis for employers to order work from the home office or mobile working due to the energy crisis. Therefore, either an agreement with the works council or an individual agreement with the affected employees is required. An order for home office is covered by the employer’s right to issue instructions under Art. 106 GewO (German Trade Regulations Act) only in exceptional cases.
When designing the home office regulation, employers should ensure that employees only have a right, but not an obligation, to work from the home office in order to avoid possible cost reimbursement claims. Here, too, the works council’s participation rights must be taken into account, both with regard to the structuring of mobile work and the possibly required introduction of new tools and software.
In order to relieve employees when working from a home office, the legislator has already made a provision: Starting in 2023, employees will be able to deduct up to 200 home office days at five euros per day, or a total of up to EUR 1,000.00 from their taxes.
Effects and practical advice
Saving energy in the company affects numerous co-determination rights of the works council, so that the works council must be included in the considerations of possible measures.
But even in companies without a works council, employers cannot unilaterally send employees to the home office. When setting up home office and mobile work, employers should ensure that participation in such programs is always voluntary for employees and that a workstation is available at the company at all times.