Late for Work Due to Border Controls: What Labor Law Says

Foto: Zwei Polizisten mit Warnwesten stehen an einer Straße. Es werden Grenzkontrollen durchgeführt. Das ist an Autos und Pylonen im Hintergrund zu erkennen ist.

11/11/2025
Reading time 5 Minutes

Late to work because of border controls at the German-French border? These are the rights and obligations of cross-border commuters and their employers.

For some time now, both France and Germany have reintroduced border controls at their borders. This leads to traffic jams and delays, particularly during rush hour, meaning that workers who commute to the neighboring country (cross-border workers) do not always arrive at work on time.

In the following, we examine the potential consequences under labor law and the options available to employers, both under French and German employment law.

Crossing the border into France: Legal situation under French law

Employees residing in Germany and working for an employer in France are generally subject to French labor law.

If a border control occurs completely unexpectedly and there is no possibility of foreseeing or avoiding it, French labor law considers this a case of force majeure. In such a situation, there is no culpable breach of duty by the employee. A one-time and unforeseeable delay must therefore not lead to sanctions, since the delay was neither avoidable nor attributable to the employee. The same applies to strikes and traffic accidents.

The situation is different if border controls take place regularly, the employee is aware of them, and the probability of delays is high. In that case, the employee is obliged to take appropriate precautions (Cass. soc., 15 Jan. 2014, No. 12-24.221). In such circumstances, delays may be attributed to the employee.

However, the principle of proportionality remains decisive. It must first be examined whether the missed working time can be made up, for example, on the same day, and whether the delay has a noticeable impact on operations. If the lost time can be compensated and no disruption to operations occurs, the situation generally does not justify sanctions.

Only if making up the missed time is not possible, or if delays are repeated and actually impair organizational processes – for example, through missed internal meetings – may the employer impose sanctions. In such cases, a reduction in remuneration may be considered. In addition, the employer may take disciplinary measures: initially a warning, followed, if necessary, by a formal demand to comply with contractual obligations, or – in serious cases – even a temporary suspension.

Only if these measures prove unsuccessful and repeated delays lead to a serious disruption of operations may termination of employment ultimately be considered.

Crossing the border into Germany: Legal situation under German law

The legal situation is somewhat different for employees who live in France and commute to their workplace in Germany. These employees are generally subject to German labor law.

According to established case law of the German Federal Labor Court (BAG), the employee generally bears the commuting risk (BAG, decision of Sept. 8, 1982 – 5 AZR 283/80) for disruptions affecting the general public. This means that delays caused, for example, by weather conditions, traffic jams, or strikes are generally the employee’s responsibility. The employee is obligated to ensure that they arrive at work on time; for example, they must leave home earlier if they know that border controls and resulting delays are to be expected. If they are nevertheless late and do not make up for the missed work time, the employer is entitled to reduce their salary in proportion to the time lost.

With regard to the lost working time, the employer is released from the obligation to perform (i.e., to pay wages). This follows from Art. 616(1) of the German Civil Code (BGB). If the employee regularly arrives late due to ongoing border controls, this constitutes a breach of contractual employment obligations and may lead to a formal warning; in cases of repeated occurrence, termination of the employment relationship may also be justified.

The employer is not generally obliged to ensure that the employee can make up the missed working time in order to avoid a reduction in pay. However, if appropriate organizational measures that would allow the employee to make up the missed time are reasonable and do not disrupt business operations, the employer may be expected to implement them. Unlike under French law, however, there is no strict obligation on the employer to do so.

Conclusion: Observe national legal particularities and prevent conflicts

Under French law, the employer generally bears the risk of delays resulting from random border controls, whereas under German law this risk generally lies with the employee. Accordingly, a French employer is not entitled to reduce wages or impose further employment-related sanctions due to unforeseeable border controls. By contrast, a German employer may generally reduce the employee’s salary proportionally for the time lost due to the delay and may issue a formal warning in the event of repeated delays, and in individual cases may even terminate the employment relationship.

The situation is different if the employee is aware of the border controls. If the employee nevertheless fails to take appropriate precautions and therefore does not arrive at work on time, the employer may take employment-related measures.

To avoid unnecessary conflicts between employees and employers, both parties in France and Germany are well advised to jointly seek solutions to prevent delays caused by border controls (for example, temporary adjustments to working hours or arrangements for remote work) or at least to mitigate their effects (e.g., through flexible working time arrangements).

Employees who arrive late due to border controls should also ensure that their employer is informed of the delay immediately, so that the employer can take timely measures to prevent potential disadvantages, for example, in the production process.

Many thanks to Claire Chevalier (claire.chevalier@oratio-avocats.com) of our French network partner Oratio Avocats for her support in writing this article.