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Most of us can naturally stay home on public holidays and enjoy these days off. But what if you run a business where employees must work, such as restaurants, hotels, care facilities, or agriculture? Are they entitled to a Substitute rest day?
What Are the Legal Foundations?
In daily business operations, you must comply with the provisions of the Working Hours Act (ArbZG) to avoid the risk of committing an administrative offense or a criminal act.
Work on Sundays and public holidays is generally prohibited (§ 9 ArbZG). Exceptions apply only to certain industries or activities.
Substitute Rest Day for Sunday or Holiday Work
If employees work on a Sunday, § 11(3) sentence 1 ArbZG stipulates that they must be granted a substitute rest day within two weeks, including the day of work.
If employees work on a public holiday that falls on a weekday, § 11(3) sentence 2 ArbZG requires a substitute rest day to be granted within eight weeks, including the day of work.
The substitute day off serves to protect employees' health and safety.
General rules on rest days can be found in § 5 ArbZG.
What Timing Should the Substitute Rest Day Have?
The law does not specify the exact timing of the substitute rest day.
A key ruling from the Federal Labor Court (BAG, judgment of December 8, 2021 – 10 AZR 641/19) clarified the definition of a substitute rest day. The case focused on the timing of rest days granted for work on public holidays falling on weekdays.
Key takeaway
A substitute rest day is therefore a working day on which the employee does not perform any work from 0:00 to 24:00. An individual period deviating from this with a duration of 24 hours is not sufficient in the opinion of the BAG. This is because the rest day serves as a substitute for a public holiday on which there is a public holiday rest period from midnight to midnight in accordance with § 9 (1) ArbZG. Accordingly, the duration and timing of the substitute rest day must correspond to that of the public holiday not granted.
What Does This Mean in Practice?
This rule poses significant challenges for companies with employees working in shifts. It is not sufficient to base the rest day on the shift times of affected employees, even if the rest period covers 24 hours. The rest day must cover an entire calendar day.
For employees who are employed in a 5-day week, a working day that is not a working day anyway can be the substitute rest day (i.e. also the following Saturday, which is a working day).
The substitute rest day within the meaning of § 11(3) sentence 2 ArbZG is not necessarily an additional paid day off.
Deviating regulations pursuant to § 12 ArbZG may be agreed in a collective labour agreement or in a company or service agreement.
Additional Requirements
- Work on Sundays and public holidays must not exceed the daily maximum working time of 8 hours (§ 3 ArbZG). An extension to 10 hours is allowed only under specific conditions.
- Pregnant and nursing women may not work on Sundays and public holidays (§ 6 MuSchG).
- Juveniles may work on Sundays and public holidays only under stricter exceptions (§ 16 JArbSchG).
- Documentation Requirement: Employers must record the working hours on Sundays and public holidays (§ 16 ArbZG).
Important Note
A substitute rest day is mandatory in Germany. Financial compensation alone is not permitted.
The purpose of this day is to protect employees' health and allow them to recover. Rest periods ensure that the strain of Sunday or holiday work is offset. It also enforces the principle of the work-free Sunday, which is protected by the German Constitution (Art. 140 GC in conjunction with Art. 139 WRV).
The Working Hours Act (§ 11 ArbZG) explicitly requires that a substitute rest day be granted for work on Sundays or public holidays. While financial compensation (e.g., holiday pay) can be provided additionally, it does not replace the legal entitlement to a rest day.
