Germany: Relaxation Of The Working Hours Act - The Regulation On The Deviation From The Working Hours Act As A Result Of The Covid-19 Enforcement (Covid-19 Working Hours Regulation)

On 7 April 2020, the Federal Ministry of Labour and Social Affairs, in agreement with the Federal Ministry of Health, adopted the Covid-19 Working Hours Regulation (hereinafter referred to as the Working Hours Regulation), which allows exceptions to the Working Hours Act for a limited period of time from 10 April 2020.

1. What does the Working Hours Regulation regulate?

The Regulation introduces relaxations with regard to

• maximum working hours,
• rest periods and the
• employment bans on Sundays and public holidays

if they are necessary for the maintenance of public safety and order, health care and nursing care, the provision of basic necessities or the supply of the population with existential goods.

In concrete terms, the following relaxations apply:

• Increase in the working hours per working day from ten to twelve hours,
  • if the extension cannot be avoided by anticipatory organizational measures, including necessary scheduling of working hours, by hiring more staff or other personnel management measures
• Reduction of the daily rest period by up to two hours
  • The minimum rest period shall not be less than nine hours
  • any reduction in rest periods shall be compensated within four weeks, if possible by days off, otherwise by extending other rest periods to at least thirteen hours each
• Employment on Sundays and public holidays with the activities listed under No. 2 is permitted, provided that it is not possible to carry out the work on working days and a substitute day of rest is granted within eight weeks, at the latest by 31 July 2020
  • Regulations in Store Closing Acts as well as in Store Closing- or  Store Opening Acts remain unaffected
• the weekly working time may not exceed 60 hours
  • exceeding 60 hours in urgent exceptional cases, unless the extension cannot be avoided by anticipatory organisational measures, including necessary scheduling of working hours, by hiring more staff or other personnel management measures                                                                                      

2. To whom does the Working Hours Regulation apply?

The Working Time Regulation applies only to selected activities and therefore does not apply to all sectors. Specifically, the Working Hours Regulation applies to the following activities

• a) in the manufacture, packaging (including filling), commissioning, delivery to contractors, loading and unloading and placing in storage of
  • (i) goods of daily use,
  • (ii) drugs, medical devices and other goods customary in pharmacies as well as aids,
  • (iii) products used for containment, control and management of the Covid 19 pandemic
  • (iv) substances, materials, containers and packaging materials necessary for the manufacture and transport of the goods, means and products referred to in points (i) to (iii).
• b) in medical treatment and in nursing, care and support of persons, including assistance and auxiliary activities
• c) for emergency and rescue services, fire brigades and civil defense,
• d) to maintain public safety and order and the functioning of courts and authorities,
• e) in the energy and water supply companies as well as in waste and sewage disposal companies,
• f) in agriculture and animal husbandry, and in facilities for the treatment and care of animals,
• g) to ensure the transport of money and valuables and to monitor operating facilities,
• h) to maintain the functionality of data networks and computer systems,
• i) in pharmacies and medical supply stores within the permitted store opening hours and for any necessary preparatory and follow-up work as well as for collection and delivery services of pharmacies and medical supply stores.

3. What effects does the Working Time Regulation have on existing regulations?

The Working Hours Act shall remain unaffected in all other respects, unless the Working Hours Regulation contains deviating provisions. The same applies to other regulations on occupational health and safety, for example in the Youth Employment Protection Act or the Maternity Protection Act. The regulations on driving and rest times also continue to apply unchanged.

The same applies to collective bargaining agreements, works constitution law and employment contract provisions on working time. If these are contrary to the relaxations provided for on the Working Hours Regulation, negotiations between the parties to the collective agreement, the parties to the works council or the parties to the employment contract are required.

4. What is the relationship to exceptions under state law?

On the basis of the regulatory powers granted to them in the Working Hours Act, some states (Länder) have issued general rulings allowing deviations from the Working Hours Act.

Some of these regulations go beyond the provisions of the Federal Working Hours Regulation, others are more restrictive.

According to the Working Hours Regulation, these regulations under state law continue to apply insofar as they

• enable longer working hours on weekdays,
• extend the scope of activities, or
• concern provisions which are not covered by the Working Hours Regulation, i.e. which do not concern maximum working time on working days, minimum rest periods and work on Sundays and public holidays.

It is therefore worthwhile to take a look at the relevant state regulations.

5. How long does the Covid-19 working time regulation apply?

The Regulation will expire on 31 July 2020, but the exceptions to maximum daily working time, minimum rest periods and work on Sundays and public holidays will only apply until 30 June 2020. This is to ensure that compensation in the case of reduced rest periods and Sunday working is made within the duration of the Regulation.

6. Does my company fall within the scope of the Working Time Regulation?

If you have doubts as to whether the activities you carry out fall within the scope of the Working Time Regulation, you can enquire at the supervisory authority responsible under the respective Land law whether employment is permitted under this Regulation.