Employees bear a “general travel risk”
Regardless of whether employees have to shovel their car free, drive slowly because of snow or their train is canceled, they are still obliged to arrive at work on time. According to Federal Labor Court ruling in 1982, employees bear the risk of travel (Ref: 5 AZR 283/80). In winter, you have to reckon with difficult weather conditions making your commute to work longer, and leave earlier.
Wage reduction yes, obligation to work longer no
If employees arrive late, their employer may reduce their wages proportionately to the time lost. This is because employers only owe wages and salaries if work is actually performed. This is always the case if the delay is caused by an objective obstacle to work that affects a large number of people. This also includes traffic disruptions caused by snow, icy roads, along with flooding, a storm warning, and also a fine dust alert.
Exceptions to the employee’s travel risk apply if the delay is caused by subjective factors and the employee personally. Here, case law confirms a claim to continued wage payment pursuant to Section 616 German Civil Code (BGB) if an employee is involved in a traffic accident, if they have to go to a doctor at short notice due to sudden severe abdominal cramps, or if their car cannot start because of a flat battery.
Employees are not entitled to make up their late start, unless stipulated otherwise in collective bargaining agreements and works agreements. Conversely, they are also under no obligation to work additional hours, regardless of whether they work in shifts, have fixed hours or flexi-time. This enables parents to still leave on time to pick up their children from kindergarten, for example. If the company records overtime, the missed time is deducted.
Remote work as an alternative?
Even if employees can essentially do their jobs from home, they are not entitled to simply work remotely in icy and snowy weather. As already reported, employees are not entitled to work from home and to remote work. Employees have to consult with their superior. Exceptions may, however, apply if coronavirus infection prevention regulations require that employees work from home.
Warning only justified in exceptional cases
Case law regards a warning as generally unjustified in the event of unforeseen circumstances such as sudden winter weather if employees inform their superiors in due time. Repeated delays despite the weather forecast having announced winter road conditions are a different case.
If employees are repeatedly delayed during winter, making them aware of the consequences via the Intranet is advisable. Punctuality despite adverse weather conditions is in the employees’ own interest because they are not entitled to continued wage payment. On the other hand, employers are not entitled to demand that employees make up for the lost time. Concluding company agreements in advance is advisable in order to prevent disputes and loss of work. For example, the agreement would enable employees to reduce overtime hours, work longer on another day, work remotely where possible, or even take leave instead.
