“Heat Leave” at the Office?

This question was recently debated in the German parliament (Bundestag). The Left Party proposed reducing working hours by 25% once indoor temperatures reach 26°C (78.8°F) and by 50% once they exceed 30°C (86°F). However, this proposal does not seem to have majority support.

As a result, the current legal framework remains in place. This article provides an overview of the applicable regulations on the temperature in office spaces and whether employees have a right to “Heat Leave”.

1. Specifications for the Temperature in Offices

Employers have the general obligation to design and maintain workplaces in a manner that employees are protected from danger to life and health (Section 618 (1) of the German Civil Code – Bürgerliches Gesetzbuch, BGB). Also under occupational health and safety regulations employers must organize and operate workplaces in such a way that risks to the safety and health of employees are avoided as far as possible and that any remaining risks are reduced to the greatest extent possible (Section 3a (1) Sentence 1 of the Workplace Ordinance – Arbeitsstättenverordnung, ArbStättV; Section 3 (1) Sentence 1 and Section 4 of the Occupational Safety and Health Act – Arbeitsschutzgesetz, ArbSchG). In doing so, employers must especially consider the Technical Rules for Workplaces – Room Temperature (ASR A3.5). The employer can deviate from these Technical Rules but then he has to ensure an equivalent level of health and safety. However, if the employer complies with the requirements of ASR A3.5, it is to be assumed that he fulfills the requirements of the Workplace Ordinance. It is therefore advisable for the employer to comply with the requirements of ASR A3.5.

a) General Rule: Indoor Temperature of Maximum 26°C (78.8°F)

According to ASR A3.5 (Section 4.2 (3)), indoor temperatures in office spaces should generally not exceed 26°C (78.8°F). The employer must design office windows in such a way that excessive heat buildup is prevented. If sunlight raises the indoor temperature above 26°C (78.8°F), the employer must protect employees by installing adequate solar protection systems (e.g., blinds or shades).

b) Special Requirements if the Outside Temperature Exceeds 26 °C (78.8°F)

If the outside temperature exceeds 26 °C (78.8°F), special requirements apply. Which exact requirements apply also depends on how high the air temperature in the office is. There are three key thresholds:

aa)    Outdoor Temperature Above 26°C and Indoor Temperature Above 26°C (78.8°F)

If both the outdoor and indoor temperatures exceed 26°C (78.8°F), the employer is not automatically required to take additional protective measures. In this case the employer should (not: “must”) implement additional protective measures (Sections 4.4 (1), 4.4 (5) ASR A3.5). These may include:

• effective control of sun protection (e.g., keeping blinds closed even after work hours);
• optimizing ventilation systems (e.g., night-time cooling);
• reducing internal heat loads (e.g., operating electronic devices only if needed);
• airing rooms during early morning hours;
• flexible working time;
• relaxing dress code policies;
• introducing additional cooling phases;
• using fans (e.g., table, standing, tower or ceiling fans).

However, there may still be individual cases in which the employer is obliged to protect the employee from special health hazards. This may be the case, for example, for employees with a pre-existing health problem (e.g. heart disease), older employees, pregnant women or breastfeeding mothers. The employer must then decide on further measures on the basis of an adapted risk assessment.

bb)    Outdoor Temperature Above 26°C (78.8°F) and Indoor Temperature Above 30°C (86°F)

If the outdoor temperature exceeds 26°C (78.8°F) and the indoor temperature exceeds 30°C (86°F), the employer must take measures to reduce the employees’ heat stress (Section 4.4 (2) ASR A3.5). The examples of measures listed above also apply here and the employer has to conduct a risk assessment in this regard.

cc)    Outdoor Temperature Above 26°C (78.8°F) and Indoor Temperature Above 35°C (95°F)

If the outdoor temperature exceeds 26°C (78.8°F) and the indoor temperature exceeds 35°C (95°F), the office is no longer considered suitable for use as a workplace (Section 4.4 (3) ASR A3.5). Employees may only continue working in such office if the employer implements appropriate technical measures (e.g., air showers, water mist systems) or organizational measures (e.g., cooling phases) or if the employer provides personal protective equipment (e.g., heat-protective clothing).

c) Minimum Temperature Requirements

When attempting to comply with the regulations on maximum temperature and cooling down the office, the employer needs to be careful: There is also requirements on minimum temperature. For light, sedentary office work, the minimum indoor temperature is 20°C (68°F). In addition, employees must not be exposed to unreasonable air draft (Sections 5.2 (4) and 6.4 (1) ASR A3.6); Section 3.6 (3) Appendix to Section 3 (1) ArbStättV).

2. Do Employees Have a Right to “Heat Leave”?

Employees do not have a right to “Heat Leave” in the sense that the employee could automatically go home when temperatures are high.

However, it may be considered that the employee may refuse to work (in this office room) if the employer fails to implement necessary heat protection measures. Nevertheless, according to the prevailing legal opinion, the employee cannot refuse to work in this room if the employer’s breach is minor, temporary, and cannot cause lasting harm (see Federal Labor Court, Bundesarbeitsgericht – BAG, Decision dated 28 June 2018, Case No. 2 AZR 436/17, NZA 2018, 1259 para. 23). In cases of imminent and serious danger, the employee can leave the workplace immediately to get to safety (Section 9(3) Sentence 1 ArbSchG). In German offices such danger due to high temperatures will only occur in rare cases.

3. Conclusion

As long as employers comply with ASR A3.5 and ensure that indoor temperatures in the office do not exceed 35 °C (95°F) when the outside temperature exceeds 26 °C (78.8°F), they are largely protected from any right to refuse to work of the employees. When temperatures rise employers may consider offering their employees a scoop of ice cream (or two) in order to prevent the atmosphere from heating up.

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