Flat rate for energy costs and energy saving in the workplace

This article sets out the framework conditions for the flat rate for energy costs and energy saving in the workplace and gives tips on how to implement them.

In order to alleviate the general population, a flat rate for energy costs was paid out in September. Also apart from this, energy is currently a very relevant topic for companies because the security of supply is in danger due to the throttling of gas supplies by Russia. Even if there are no outages or rationing, the already very high gas and energy prices will put a considerable burden on the general public and businesses.

To reduce the dependence on Russian gas, the EU member states have committed to saving 15 % of last year's average gas consumption to the "best of their ability" in the Regulation on Coordinated Demand Reduction Measures for Gas.

On 1 September 2022, the German Ordinance Concerning Short-Term Measures to Secure Energy Supply (EnSikuMaV) entered into force. It is valid until 28 February 2023 and regulates certain mandatory energy-saving measures. Companies are also faced with the question of how they can save energy. Not only to reduce costs, but also to meet their overall social responsibility.

Flat rate for energy costs as a one-off payment in the amount of EUR 300 gross

According to the explanatory notes on the legislation, the aim of the flat rate for energy costs is to relieve those who typically have to spend on travel costs to get to work and are, therefore, particularly burdened by high energy costs.

The costs for the lump sum in the amount of EUR 300 gross is borne by the Federal Government. It was paid to all those who are resident or are habitually resident in Germany in 2022 and receive income from self-employment or as an employee.

Employees who were in employment on 1 September 2022 generally received the lump sum from their employer in September. The sum was taxed with the salary, but no social security contributions were levied on it. The employer could take the lump sum paid out from the wage tax to be withheld. If the amount paid exceeds the wage tax to be withheld, the amount will be refunded to the employer by the tax office.

Anyone who did not work as an employee on 1 September 2022 will receive the lump sum after filing an income tax return as part of the income tax assessment.

New minimum temperatures apply for temperature regulations

No limitation of the maximum temperature is currently planned for private companies in non-public buildings. There is however a strong incentive to turn down the heating due to high energy prices. However, they must adhere to minimum temperatures (sections 12, 6 German Ordinance Concerning Short-Term Measures to Secure Energy Supply (EnSikuMaV)), which have been reduced slightly compared to the previously applicable lower limits.

Compared to the previously applicable minimum temperatures, the following has emerged:

In rooms such as break rooms, canteens or sanitary facilities, the minimum temperature must be 21 degrees. In washrooms with showers it can even be 24 degrees.

The above provisions on the new minimum temperatures set out in the German Ordinance Concerning Short-Term Measures to Secure Energy Supply (EnSikuMaV) apply until 28 February 2023. Unless the ordinance is then extended, the old specifications regarding the minimum temperature as per the German workplace regulations (ASR) will apply again from 1 March 2023.

If the establishment has a works council, its right of co-determination on matters relating to the protection of health (section 87 (1) no. 7 German Works Constitution Act (BetrVG)) must be observed. This includes measures to mitigate extreme temperature risks, but not the issue of how high to set the central heating. Should employees be instructed not to set the heating above the minimum temperature, the works council also has a right of co-determination under section 87 (1) no. 1 German Works Constitution Act (BetrVG).

There are specific energy-saving regulations for the retail sector. For example, keeping shop doors or entrance systems open is prohibited if this causes heat to escape (section 10 German Ordinance Concerning Short-Term Measures to Secure Energy Supply (EnSikuMaV)). In addition, illuminated advertising installations must always be switched off from 10 p.m. to 4 p.m. the following day (section 11 German Ordinance Concerning Short-Term Measures to Secure Energy Supply (EnSikuMaV)). Retail employers should inform their employees about these regulations and instruct them to implement them.

Hot water supply: hot water only "when needed"

In principle, hot water can be turned off in toilet areas. According to occupational health and safety law, hot water must only be provided "when required" (5.4 (2) German workplace regulations (ASR) A4.1). Such a need may arise from special hygienic requirements, e.g. when handling food.

If washing facilities have to be provided, e.g. for activities involving heavy soiling or harmful substances, they must also have hot water (6.4 para. 1 German workplace regulations (ASR) A4.1).

Employers can motivate their employees to implement further energy saving measures

Apart from heating, companies can also save energy. For example, lighting can be reduced and attention paid to efficient usage. Installing LED lamps and ensuring windows and doors have adequate insulation also saves energy.

Employees, too, can contribute to saving energy, e.g. by only using lights when needed, not leaving electronic devices on standby or keeping doors to unheated rooms closed. An employer can motivate its employees to take such measures. The first step is to provide information about energy-saving possibilities in the workplace. In addition, financial or other incentives can be created for the workforce, for example by giving employees a bonus if they achieve certain energy saving targets. According to media reports, Deutsche Bahn will pay its employees up to EUR 150 if they successfully save energy.

In principle, the employers can, within the scope of their right to issue directives, also prescribe energy-saving behaviour, such as observing maximum temperatures (defined by the employer) or ensuring efficient ventilation. However, works councils have a right of co-determination with regard to matters relating to the rules of operation in the establishment and the conduct of employees (section 87 (1) no. 1 German Works Constitution Act (BetrVG)). This also includes the prescribing of energy-saving behaviour. A works agreement containing appropriate provisions would, therefore, have to be drawn up in advance in establishments with a works council. This can be used, for example, to regulate when and how to ventilate, up to what temperature the employees are allowed to heat rooms and under what conditions lights are to be switched on.

An employer cannot generally make working from home obligatory

Due to high energy costs, it can be attractive for an employer to tell employees to work from home or use other forms of remote working to save office heating costs.

However, this is not unilaterally possible without a contractual regulation. Although the employer may determine the place of work in the absence of any other contractual provision (section 106 German Trade, Commerce and Industry Regulation Act (GewO)), it cannot dispose of the employee's private premises. Whether an employee can issue such official instructions in exceptional circumstances has not yet been clarified by the highest courts. In any case, this would require at minimum a threat to the existence of the company, which, according to the current situation, cannot be justified by increased energy costs alone.

If contractual provisions from the time of the pandemic exist, these should be checked to see whether the clauses also apply to energy supply emergencies.

In the case of remote work, such as working from home, the works council's right of co-determination must also be taken into account. It has a right of co-determination in the organisation of the remote work, i.e. "how" the activity is carried out (section 87 (1) no. 14 German Works Constitution Act (BetrVG). Typically, works agreements regulate, amongst other things, which requirements must be met for remote working, which attendance obligations exist in the company, from where remote working is permitted and when and how employees must be reachable.

If remote work is carried out at the instruction of the employer, the employer must also bear the costs incurred (section 670 German Civil Code (BGB)). To simplify matters, flat rates can be agreed with employees. However, as in the majority of cases remote work is in line with the employee's wishes and interests, a corresponding claim for reimbursement of costs should be denied in these constellations.

In principle, the employee also has no unilateral right to work from home. A refusal to perform work at the workplace because the temperatures fall below the aforesaid minimum temperatures is at most conceivable if the breaches by the employee are only minor or short-term.