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Exceptions to the Working Hours Act as a result of the COVID 19 pandemic

The new Section 14 para. 4 of the Working Hours Act (Arbeitszeitgesetz – ArbZG), which was inserted with the statutory social protection package (Act to facilitate access to social security and to the deployment and protection of social service providers on account of the coronavirus SARS-CoV-2e), authorises the Federal Ministry of Labour and Social Affairs to issue statutory ordinances in order to permit uniform nationwide exemptions from the requirements of working hours legislation. Based on this, the COVID-19 Working Hours Regulation was issued on 07 April, 2020. This regulation provides the following essential regulations, initially limited until 31 July, 2020:

1. Persons concerned

The exceptions to working hours under the COVID-19 Working Hours Regulation apply to employees who perform activities in system-relevant areas. These activities are listed exhaustively in the Regulation. The activities covered include medical treatment and care, the manufacture and supply of goods for daily use, pharmaceutical and medical products, and those activities that serve to maintain public safety and order and the functioning of courts and authorities.

2. Increase in the maximum working hours per working day

According to the COVID-19 working time Regulation, the working day can now be extended to up to twelve (instead of ten) hours. However, the legal regulations on compensation continue to apply unchanged. For this reason, working time in excess of eight hours must be compensated within six calendar months or within 24 weeks to an average of eight hours per working day.

The permissible maximum weekly working time of 60 hours may only be extended in urgent exceptional cases, unless the extension can be avoided by other forward-looking organizational measures, such as hiring.

3. Minimum rest periods

According to the COVID-19 Working Hours Regulation, employees must be granted an uninterrupted rest period of only nine (instead of 11) hours after the end of the daily working time. Employees are then in turn entitled to compensation during the period mentioned under sec. 2. However, this is to be granted by days off if possible, otherwise by extending other rest periods to at least 13 hours in each case.

4. Ban on employment on Sundays and public holidays

Employees working in the systemically relevant areas may exceptionally be employed on Sundays and public holidays, provided that the work cannot be carried out on working days. The substitute rest day for Sunday employment may be granted within eight weeks and must have been granted at the latest by the expiry of the Regulation on 31 July 2020.

5. Earmarking

Due to the COVID-19 epidemic, the exceptions must be necessary to maintain public safety and order, health care and nursing care, services of general interest or to provide the population with existential goods.

6. Subsidiary

In view of the fact that long working hours, reduced rest periods and the postponement of the weekly rest period can have a negative impact on the safety and health of workers, the employer must always weigh up beforehand, in the context of his duty of care when using the derogations made possible by the Regulation, whether a derogation is justifiable in the light of safety and health in the light of an exceptional emergency.

7. Excluded regulatory areas

The right of co-determination of the works or staff council remains unaffected by the COVID-19 Working Hours Ordinance. Furthermore, the regulations on occupational health and safety in other laws – in particular in the Youth Employment Protection Act (Jugendarbeitsschutzgesetz – JArbSchG) Maternity Protection Act (Mutterschutzgesetz – MuSchG) as well as regulations on driving and rest times in accordance with the Regulation 561/2006/EC – continue to apply unchanged.

8. Relationship to regulations at federal state level

The COVID-19 Working Hours Regulation comes into force alongside regulations that were issued on the basis of the authorization of the federal states to deviate in accordance with sec. 15 para. ArbZG. The federal states are therefore entitled, within the scope of their regulatory powers, to permit longer working hours beyond the provisions of the COVID-19 Working Hours Regulation or to provide regulations for other activities that are not mentioned in the COVID-19 Working Hours Regulation. Furthermore, the federal states are entitled to regulate exceptions that are not the subject of the COVID-19 Working Hours Regulation.

9. Period of validity

The COVID-19 Working Hours Regulation came into force on 10 April 2020 and is valid until 31 July 2020.

We will of course keep you informed of any further changes in the legal situation.

Dr. Lorenz Mitterer                             Katharina Schlonsak

Lawyer / Partner                                Lawyer

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