Impending energy crisis: mandatory energy conservation as of 1 September 2022

The emerging energy crisis forces us all to take action: yesterday, the German Federal Cabinet approved two ordinances on energy conservation presented by Habeck, Germany’s Federal Minister of Economics. The ordinances specifically stipulate that not only public entities, but all companies, are required to save gas and electricity. The first measures become mandatory as of 1 September 2022. 

Annabelle Marceau and Jörn Kuhn explain the labour law implications of the two ordinances.

1. Planned measures

The Federal Government's responses to the energy crisis are manifold. At present, two ordinances stipulate comprehensive energy conservation measures.

The Ordinance on Securing the Energy Supply via Measures Effective in the Short Term [Kurzfristenergiesicherungsverordnung – EnSikuV] regulates mandatory energy-saving measures for public non-residential buildings and companies, among others. 

The ordinance includes the following stipulations:

• Maximum temperatures for workrooms in public buildings
• Minimum temperatures for workplaces
• Ban on keeping entrance doors open in retail stores 
• Restriction of use of illuminated advertising facilities (ban on illumination from 10 pm - 6 am) 

Since the period of validity of the EnSikuV is limited to six months, the ordinance does not require Bundesrat approval (Sec. 30 (4) German Energy Conservation Act [Energiesicherungsgesetz, EnSiG]), which means that the ordinance automatically enters into force on 1 September 2022. However, it has yet to be promulgated in the German Federal Law Gazette [Bundesgesetzblatt]. 

The further Ordinance on Securing the Energy Supply via Measures Effective in the Medium Term [Mittelfristenergiesicherungsverordnung – EnSimiV] will enter into force on 1 October 2022 for a period of two years. This ordinance governs technical energy-saving measures in buildings and obliges companies to implement energy management systems. However, it still has to be approved by the Bundesrat.

The enactment of the EnSikuV gives rise to a need to address individual labour law issues.

2. Are employers obliged to reduce temperatures in offices?

In principle, the EnSikuV does not differentiate between employers in the public sector and employers in the private sector, but only according to whether or not workrooms are located in public buildings. For workrooms in public buildings, the air temperature values specified in Sec. 6 EnSikuV are maximum values (!). 

On average, these are approx. 1-2 degrees below the minimum room temperatures of the German Technical Rules for Workplaces [Technische Regeln für Arbeitstätten, ASR] 3.5, point 4.2, which have had to be complied with to date.
For other commercial workplaces, however, the room temperatures now specified are given as minimum temperatures (cf. Sec. 12 EnSikuV). A mandatory lowering of temperatures is not required for these buildings. 

However, the ordinance's explanatory memorandum calls on companies to follow the public sector's example. Whether this is even feasible as such is questionable, however, because the room temperatures of the ASR fundamentally always have to be applied via the German Workplace Ordinance [Arbeitsstättenverordnung, ArbStättV] (cf. Sec. 3 (1) ArbStättV in conjunction with Annex 3.5). On the other hand, it has not yet been clarified whether the EnSikuV is a priority ordinance within the meaning of Sec. 3a (4) ArbStättV. 

The most important points are:

• There are no mandatory comprehensive temperature reductions (for now), but rather only for public buildings. 
• Private companies with business premises in public buildings will have to adjust to the new maximum temperatures. 
• Temperatures are to be lowered in all workplaces, but the conflict has not been clarified. 

3. Are employers required to raise temperatures in offices if the heating fails?

The energy crisis entails a risk of heating outages, especially in buildings heated with gas. This raises the question of whether employers are obliged to ensure that the room temperature is increased in the event of an outage. 

As already stated, in workplaces in non-public buildings, the room temperatures of the ASR still have to be applied with priority (see above; cf. Sec. 3 (1) ArbStättV in conjunction with Annex 3.5). If the required room temperatures are not reached, the employer initially has to take technical and organisational measures in accordance with the principles of occupational health and safety before it can resort to personnel measures. In this respect, Sec. 6 (4) EnSikuV also stipulates that the room temperatures specified under Sec. 6 (1) Nos. 1 and 2 EnSikuV only do not apply if this leads to a health hazard for employees and if other protective measures are not possible or sufficient. 

In our opinion, the installation of energy-intensive radiant heaters or fan heaters will not be an option in offices, which means that other measures will have to be taken. Rather, the ordinance's explanatory memorandum provides that employers offer their employees the chance to work from the home office. 

In this context, employers must still fundamentally remember that violations of the German Occupational Health and Safety Act [Arbeitsschutzgesetz, ArbSchG] generally constitute a regulatory offence punishable by fine (Sec. 25 (1) No. 1 ArbSchG in conjunction with ArbStättV).

4. Can employers oblige their employees to work from the home office?

The energy conservation ordinances do not provide for any special regulations, which means that the general requirements for introducing home office work apply. In particular, a binding basis should be created in order to also ensure the return of employees to the workplace after the winter period. 

In the political discussions of recent weeks, an obligation to work from the home office has resurfaced, similar to the regulations contained in the old version of Sec. 28b (7) of the German Infection Protection Act [Infektionsschutzgesetz, IfSG] (obligatory offer of home office work, unless operational reasons prevent this). At present, it seems highly likely that there will be corresponding regulations. It is also possible that this will be implemented with the planned revision of the SARS-CoV-2 Occupational Health and Safety Regulation [SARS-CoV-2-Arbeitsschutzverordnung]. 

If a company has a works council, then, as we know, the works councils has to be involved in accordance with Sec. 87 (1) Nos. 6, 7, 14 of the German Shop Constitution Act [Betriebsverfassungsgesetz, BetrVG].

5. Does the employer have to compensate for expenses in case of a home office obligation?

n the vast majority of cases there is no claim for reimbursement of expenses, as the savings made by employees through not having to go to the company workplace offset any additional expenses arising from their working from home. 

One more point needs to be considered in this context: the legislator's home office tax allowance of 5.00 euros per day expires on 31 December 2022. Changes by the legislator are expected here, as the limit of 120 days and 600 euros has come up against strong criticism and, bearing in mind the corona and energy crisis, hardly covers the year 2022.

6. Are employees allowed to refuse to work when room temperatures are too low?

If it is not possible for employees to work from the home office and the employer is unable to ensure the prescribed minimum temperatures in the workplace, this raises the question of whether employees may legitimately withhold their work performance and whether the employer is still obliged to pay their remuneration. 

In principle, it is the employer who bears the business risk in accordance with Sec. 615 sentence 3 German Civil Code [Bürgerliches Gesetzbuch, BGB]. This may be assessed differently if the third stage of the gas emergency plan is declared. In this case, the question will be whether this really does still constitute a business risk if the state orders the gas supply to be stopped and this thus leads to a heating outage at the business premises. 

This will depend on the specific individual case since, first of all, room temperature is strongly a matter of personal perception and, secondly, it is relevant how long the premises may be too cold. This gives rise to the follow-up question of whether employers can take other (short-term) measures and, for example, provide suitable warm clothing, or whether employees may purchase appropriate clothing - at the employer's expense.

7. Does the works council have a right of co-determination if the room temperature is to be lowered?

Pursuant to Sec. 87 (1) No. 7 BetrVG, the works council has a right of co-determination regarding regulations on occupational health and safety. This does not mean that the works council can decide whether or not temperatures are to be lowered. The works council does, however, have a co-determination right with regard to the implementation of the decision. This is especially the case with regard to measures to be taken by the employer to prevent hazards to the workforce arising from cooler room conditions.

8. Do work activities have to be subjected to a new risk assessment?

In principle, according to Sec. 5 ArbSchG, every employer must determine which occupational health and safety measures are necessary by assessing the hazards arising for their employees in association with their work. This is in turn concretised by the ArbStättV, with its Sec. 3 stipulating that the employer must take physical stress, among other things, into account. This also includes the room temperature (Annex to Sec. 3 ArbStättV, point 3.5). Accordingly, there is much to suggest that employers who lower the room temperatures in their premises should prepare new risk assessments. 

Here, too, the works council's right of co-determination pursuant to Sec. 87 (1) No. 7 BetrVG must be taken into account.

9. Does the works council have a say in the introduction of energy management systems?

If an IT-based energy management system is to be introduced by a company, the works council has a right of co-determination pursuant to Sec. 87 (1) No. 6 BetrVG if the IT application is suitable for monitoring the behaviour or performance of employees. 

The same also applies pursuant to Sec. 87 (1) No. 7 BetrVG, insofar as the energy management system to be introduced has an impact on the health protection of the workforce. 

10. Outlook

The course of the energy crisis entails many imponderables for companies – and not only the fact that it is not foreseeable to what extent this crisis will force further restrictions. Rather, it remains to be seen whether and, if so, what effects the third "corona winter" will bring us. Employers need to develop contingency plans in order to respond to new circumstances as quickly as possible. In this context, talks with employee representatives should also be sought promptly in order to ensure that action can be taken quickly. 

Our experts Annabelle Marceau and Jörn Kuhn are happy to assist you.

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