Working on Public Holidays in Germany: Surcharges and Continued Pay

Quick Hits

• An employer’s obligation in Germany to pay public holiday surcharges under the TV-L depends on whether a statutory holiday exists at the employee’s regular place of employment.
• Collectively agreed holiday surcharges may cover Easter Sunday and Whit Sunday if the wording of the collective agreement so provides, even though these days are not statutory holidays in many federal states.
• In the private sector, public holiday law is determined by the actual place of work (e.g., the employer’s premises or the home office), although employers may contractually provide that home office or mobile work is excluded on days that are statutory holidays only at the mobile work location—but not at the employer’s main office.

For private-sector employers, the following applies: The prohibition on work under Section 9(1) of the Working Hours Act (Arbeitszeitgesetz (ArbZG))and the continued payment of wages on public holidays under Section 2(1) of the Continued Remuneration Act (Entgeltfortzahlungsgesetz (EFZG))are tied to the place of work, meaning the federal state in which the work is actually performed. This also applies to home office and mobile work, regardless of whether the employment contract designates a different location as the place of work.

Holiday Surcharges Despite a ‘Holiday-Free’ Federal State for Collectively Bound Employers

An employee of a hospital in North Rhine-Westphalia, whose employment relationship was governed by the TV-L, attended a training course in Hesse from November 1 through November 5, 2021, at the employer’s direction. November 1 (All Saints’ Day) is a statutory holiday in North Rhine-Westphalia but not in Hesse. The employee claimed the collectively agreed holiday surcharge for the ten hours worked on that day. The BAG upheld the claim. According to the purpose of the collectively agreed surcharge provision, entitlement to the surcharge is determined by the employee’s regular place of employment, not the actual place of deployment. The parties to the collective agreement assume that the employee’s social environment—with which the employee could spend and enjoy the holiday—is located at the regular place of employment. This approach avoids arbitrary outcomes in cross-state deployments.

Without a Collective Agreement, What Rules Apply in the Private Sector?

The decisive factor for whether working on a public holiday violates the prohibition on employment under Section 9 of the ArbZG is solely the actual place of work—the location where the work is actually performed. If this location is in a federal state that observes a statutory holiday, the prohibition on employment applies (BAG, decision of April 16, 2014 – Ref. No. 5 AZR 483/12). This also applies when the employee’s residence is designated as the place of work or the employee works remotely. If employees are assigned a place of work in a federal state that observes a statutory holiday, the duty to work ceases (Section 9(1) of the ArbZG) and the employee is entitled to continued pay (Section 2(1) of the EFZG), even if the employer’s main office is in a state without a holiday. Conversely, the duty to work continues if the employer’s main office observes a holiday but the assigned place of work does not. If the employee nevertheless does not work in such a case, no claim for continued pay under Section 2(1) of the EFZG arises, because this provision covers only statutory holidays at the actual place of work. The employer’s obligation to pay remuneration in this scenario may only arise under other legal bases.

Contractual provisions that aim to circumvent the statutory entitlement to continued pay on public holidays are incompatible with the mandatory nature of this entitlement as set out in Section 12 of the EFZG and are therefore void to that extent (BAG, decision of October 16, 2019 – Ref. No. 5 AZR 352/18).

Whit Sunday—Holiday Surcharge Without a Statutory Holiday?

A long-serving employee of a bread and bakery products company in North Rhine-Westphalia claimed the 200 percent surcharge provided in the framework collective agreement (Manteltarifvertrag (MTV))for work performed on Easter Sunday and Whit Sunday, after the employer had only paid the standard Sunday surcharge (50 percent). The MTV explicitly referred to “major holidays (New Year’s Day, Easter, May 1, Whitsun, and Christmas).” The BAG ruled in the employee’s favor, holding that Easter Sunday and Whit Sunday are also covered, even though they are not statutory holidays under state law (BAG, decision of February 24, 2021 – Ref. No. 10 AZR 130/19). In common usage, the respective Sunday is the central day of Easter and Whitsun. It would therefore be far-fetched to interpret “Easter” and “Whitsun” as including Monday but not Sunday. The collectively agreed holiday surcharge is therefore also payable for work on Easter Sunday and Whit Sunday.

Key Takeaways

For holiday surcharges under the TV-L, the decisive factor is whether a statutory holiday exists at the employee’s regular place of employment—business trips do not change this. In the private sector, by contrast, the actual place of work determines the outcome, including the home office. However, employers may contractually exclude home office or mobile work on days that are statutory holidays only at the mobile work location, but not at the employer’s main office.

Employers cannot circumvent continued pay under Section 2(1) of the EFZG by simply not scheduling work on public holidays. The entitlement to continued pay for a specific holiday lapses only if the exemption from work follows a holiday-independent pattern, such as a fixed shift schedule. This is particularly relevant in industries with variable work scheduling, such as delivery services.

Ogletree Deakins’ Berlin and Munich offices will continue to monitor developments and will post updates on the Cross-Border, Germany, Leaves of Absence, and Wage and Hour blogs as additional information becomes available.

Daniela Schumann is a senior associate in the Berlin office of Ogletree Deakins.

Lela Salman, a law clerk in the Berlin office of Ogletree Deakins, contributed to this article.

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