28.01.2019 Ι With ice and snow the way to work becomes tedious and many employees arrive too late. What rules apply to delays – and who is liable if an accident happens.
Who is responsible if I’m late for work due to weather conditions?
Basically, it is up to the employees how they get to work. They must appear on time. How they do it is not the employer’s problem. The workers carry with it the so-called “Wegerisiko”.
Does the employer pay despite being late?
If you are late for work because of ice and snow, you are not entitled to any payment for the time you did not work. It applies the principle: “no work without work” – regardless of whether you can do something for the delay or not.
Do I have to rework the lost time?
Basically, employees do not have to make up for the lost working time. Of course, that is different if the employer has a time account or Overtime account to be led. The lost hours are then booked as minus hours and can be made up at a later time.
However, the employer can not force anyone to hang on to the unusual hours in the evening – especially not when, for example, a part-time worker has to go at noon because a child has to be picked up from school.
When does the employer have to pay despite delays?
If work is not done, the employer only has to pay in a few exceptional cases. And that is when the employee is “kept away from work by a person in his or her own fault”.
Snowfall or black ice are not “in person” but objective reasons that strike everyone. The same applies to floods, demonstrations, roadblocks, general driving bans or even in strikes of the transport companies. For example, there is a subjective reason when, due to the weather, the school remains closed and employees do not find any other care facilities. The reason for the work prevention is then “in the person” of the employee – because his own child absolutely needs care. In this case, there is a right to further payment of the fee for at least a few days. This claim arises from section 616 BGB.
However, the provision of Section 616 BGB is “mandatory”. This means that not only an improvement in favor of the employees can be made, but its claims can be limited or even completely excluded. This is possible both through the employment contract and through collective bargaining agreements, under certain circumstances also through company agreements.
May the employer warn me about being late?
That depends on the individual case. A Warning may be pronounced only for a reproachful behavior. A warning in case of a short-term onset of winter or because of a traffic chaos after an accident is hardly justified.
However, the employer can demand that employees adjust to the weather and plan more time. The excuse for not being able to arrive in time for work due to the snow is unlikely to be accepted by the employer after three days at the latest. Then a warning would be justified, especially if all other employees are on time. “Force Majeure” excludes a warning. However, one has to be careful: Not every unpleasant environmental influence is “force majeure”. This can only be said in rare cases – for example, when the German Weather Service asks the population not to go out on the street due to floods or ice slipperiness.
Who pays, if they can not work anymore?
If, due to the weather, the work can not take place at all – for example because material does not arrive – this is considered a general operational risk. This is basically the employer. For employees, this means that they continue to receive their pay even when they are not working.
Who is liable for accidents due to ice and snow?
Legally, this applies to what is also true in the case of journeys to and from work: If the accident happened on the direct route to work, it is considered an accident at work. The costs of treatment are covered by the employers’ liability insurance association, which may also pay an injury pension.
Insurance cover, however, basically only covers the direct route to and from work. In the case of snow and black ice, detours may also be covered, which become necessary because the usual way to work is impassable or too dangerous.