Unfortunately, the number of infections with the Coronavirus (COVID-19) in Austria continues to rise daily - the government measures to fight the Coronavirus grow to the same extent, which in turn has more and more profound effect on work life and thus on labor relations between employers and employees.
We too, can currently not predict which measures will be taken in the near future or, in particular, how the virus will continue to spread - nevertheless, we aim to support our clients to the best of our abilities in this difficult phase.
In order to carry out some preparatory work for you, we have compiled the most important questions and answers regarding the topic of labor law and are offering them to you as part of our special service. If you have any further questions, please feel free to contact our office at any time!
1. Ist the employer obliged to take protective measures to avoid contagion with Coronavirus?
Yes, as a consequence of their duty of care, employers are obliged to take measures in order to protect employees from infection as best as they can.
In businesses with intense customer contact or contact with customers at risk in particular, employers are required to take suitable precautionary measures to protect their employees from infection.
We urge employers to strictly follow the current recommendations, in particular those of the Austrian Ministry of Health (Gesundheitsministerium) and AGES (Agentur für Gesundheit und Ernährungssicherheit GmbH – Agency for Health and Nutritional Safety), and to coordinate protective measures with occupational health and safety officers.
Accordingly, the protective measures to be taken by the employer are hygiene recommendations, the provision of disinfectants and the forward planning of business trips.
Currently, employers are not obliged to provide protective masks, except in special cases such as: for work in hospitals or business trips to areas with widespread local transmission of Coronavirus. As of 13.03.2020, employers have been asked to provide home offices wherever and whenever possible.
2. Can workers insist to wear protective masks at work?
It depends: If, due to the circumstances and the activity performed, the likelihood of an infection with Coronavirus is low, employers can prohibit the wearing of protective masks. For example, if activities involving customer contact require that customers not be deterred by employees wearing protective masks, employers usually have a legitimate interest.
However, wearing a protective mask is certainly justified for activities with an increased risk of infection (working at airports, contact with risk groups, etc.) and for people to whom an infection poses an increased health risk (e.g. compromised immune system, pregnancy). In such cases and similar ones, the employee may not follow an employer’s instruction (Weisung) not to wear a protective mask.
3. Can the employer prohibit vacation / business trips to an area with widespread local transmission of the Coronavirus?
Employers can prohibit business trips to areas with widespread transmission, as these are indisputably part of the business sphere. Personal vacation trips, on the other hand, are considered private – the employer has no right to issue instructions and cannot prohibit trips to affected areas. However, employers may require workers returning from such vacations to provide information about whether they have visited an area with widespread local transmission, so that can take measures to protect other workers can be taken.
Attention: If an employee falls ill from the Coronavirus while on vacation in a known risk area, this can be very likely be considered gross negligence – and result in the employee losing their right to continued wage payment (Entgeltfortzahlung).
4. Do workers need to inform the employer if they contract the Coronavirus? What should the employer do if an employee is infected with the Coronavirus?
Generally, employees are not obligated to report their medical diagnoses to the employer. However, we assume that there is an obligation to report Coronavirus infection to the employer. Coronovirus is considered a highly infectious illness that the person affected is obliged to report to health authorities, which is why the employee is obligated to also report it to the employer immediately and without being previously asked.
Only by way of such a proper report the employer can fulfill his/her duty towards both the employee affected and in particular the other employees, and also assert the employer’s rights under the Epidemic Act (Epidemiegesetz).
Finally, if the employee affected does not mention that he or she has been infected with the virus and in turn infects his coworkers, he or she may have a (tortious* - ex delicto) liability towards them.
Employers are required by law to provide information if the district administrative authority (Bezirksverwaltungsbehörde) surveys actual and suspected Coronavirus cases. Due to the employer’s duty of care, it is advisable to immediately contact AGES (phone number: 1450) and ask for recommendations and how to proceed in the event of a suspected case (acute symptoms, prior stays in a vulnerable or quarantined area as well as contact with a confirmed case).
If the disease is confirmed, the employer should immediately contact the local health authority (district administrative authority, magistrate, medical officer, labor inspectorate).
As regards to the duty of care, the employer must also immediately inform the other employees of the case that has occurred in the business and, if necessary, take further recommended measures.
5. May the employer place employees off duty out of fear of the Coronavirus spreading?
With only a few exceptions, it is possible to put employees off duty (dienstfrei) at any time. However, it should be noted that, according to § 1155 Civil Code (ABGB - Allgemeines bürgerliches Gesetzbuch), wages must continue to be paid when the employee is willing and ready to work. However, the employee must be credited with what (expenses) he or she has saved due to non-employment or acquired through other use.
6. Continued payment in the event of the closure of a business?
If the owner closes the business voluntarily (i.e. without an order from the authorities), the employees may be entitled to continued payment of their remuneration in accordance with § 1155 ABGB. In the case of official requirements, however, the provisions of the Epidemic Act apply, according to which the federal government (Bund) reimburses the cost of continued wage payment (see question 8).
7. Is the employee allowed to unilaterally stay at home out of fear of being infected with the Coronavirus?
Generally no, with few exceptions: only those employees who are at increased medical risk or who have persons in their immediate vicinity who are e.g. immunocompromised, may have the right to stay at home due to their duty of care. towards (these) other persons and may refuse to work. Is there an objectively justified risk of contracting the virus at work, e.g. because several infections have already occurred in the immediate working environment, all workers have the right to stay at home.
Unreasonable absence from work is a violation of the service duties and is usually a reason for summary dismissal (Entlassung).
8. Are salaries still to be paid in the event of illness and / or quarantine?
In the event of the Coronavirus Disease, the general rules for continued wage payment in the event of illness apply. If the sick employee is in a quarantine ordered by the authorities, the same principle applies.
Pursuant to the White Collar Worker Act (AngG - Angestelltengesetz) and the ABGB, employees are also entitled to continued wage payment if they are prevented from working for a short period of time for important personal reasons through no fault of their own. This also includes public duties such as quarantine and the actual hindrance to perform work that this causes.
Pursuant to the Epidemic Act, employees who are prevented from performance of work due to quarantine individually ordered by the authorities, are, for the duration of the quarantine, entitled to reimbursement for the loss of earnings by the federal government. The employer must continue to pay the employee’s wages and the federal government must compensate the employer for the wages paid:
Within six weeks from the day the quarantine was lifted by the competent district administrative authority, the employer can reclaim the remuneration paid and the employer's share in statutory social insurance from the federal government.
Unfortunately, there is still no Austria-wide, uniform application form. In many cases, however, an informal letter to the district administrative authority with the following content should be sufficient:
Note: Quarantine isolation is a precautionary measure and therefore counts as other reason for being prevented to perform duties (sonstiger Dienstverhinderungsgrund). Only when an actual illness is established (by sick note), sick leave is also granted.
However, the recent measures taken by the authorities in accordance with § 15 Epidemic Act are not mentioned in § 32 Epidemic Act and therefore do not constitute a claim for reimbursement from the federal government.
Important: The Epidemic Act only includes measures by Austrian authorities. This means that in the case of non-performance of work due to measures taken by foreign authorities (e.g. if an employee is stuck abroad), the general rules of continued wage payment pursuant to § 1155 ABGB apply.
Therefore, extreme caution is required in this case and we expect various disputes in this area after the crisis.
9. Can employers unilaterally order employees to work in home office?
If the employee is provided with home office equipment by the employer (in particular a laptop and a business cell phone) and if the employee has already worked from home in the past, the employer can now request that the employee works from home.
Of course, businesses should agree on a home office together with the employees affected.
An order by the employer is possible in any case if a corresponding agreement is already included in the employment contract or if there is a so-called transfer clause (Versetzungsklausel), according to which the employee can be transferred unilaterally to a place of work other than the one originally agreed upon.
The employer has to cover any costs (e.g. for internet, cell phone). If an employee is in quarantine at home without being ill, teleworking during quarantine can also be arranged.
Even if the worker has not worked from home in the past, such a duty could exist in the event of a crisis in terms of fiduciary duty as a broader interpretation of the contract. This could be the case if it is not possible to work at the company (e.g. due to official requirements), if the employer provides the necessary equipment to enable the employee to work from home, and if it is within reason as regards the employeee’s personal life and family circumstances, employees have to work from home. The latter will usually be the case.
10. Could employees be forced to take time off or go on vacation?
Subject to other (collective / individual) contractual regulations: Basically no. Mutual consent is always required for vacation and time compensation. In our opinion, a unilateral instruction to the employee to consume vacation is in no way effective, it always has to be mutually agreed upon.
The question regarding the reduction of compensatory time-off is trickier to answer. Subject to individual contractual regulations (e.g. certain “flexitime” agreements) or in particular collective agreement regulations (e.g. collective agreement for workers in the hotel and hospitality industry), the consent of both contracting parties is also required for this case. In any case, it is advisable to always discuss this in detail with the employee concerned, specifically in view of a further constructive cooperation.
11. Can employees cancel an already approved vacation?
As already explained, vacation must be agreed between the parties, which is why this applies to its termination as well. However, there is also a right to unilaterally withdraw from the agreed vacation for any reason that makes it inappropriate to maintain the agreed vacation. In cases of force majeure - such as traveling to Italy or Spain at the moment - an employee can unilaterally withdraw from the agreed vacation.
12. Are the employers obliged to continue payment of salary if the employee has to take care of his children because the school / kindergarten is closed?
The release from work for childcare reasons requires that the child being cared for is ill. If this is not the case, there is no entitlement to parenting leave or nursing care leave for this reason. However, employees may still be entitled to continued payment for important personal reasons. A prerequisite for the assertion of such a claim is the timely notification of the incapacity to work and no other alternative childcare available to the employee.
According to § 18b AVRAG, employers can offer, in the event of the official closure of educational institutions and childcare facilities for employees who are not active in a supply-critical area, a special care period of up to three weeks for the care of children up to the age of .14. This can be granted not only in weekly blocks, but also in the form of individual working days. However, the subsidized special care time is only possible (i.e. subsidiary) if the affected contractor is not entitled to parental leave or nursing care leave. The general right for care leave is not considered as a right to parental leave or nursing care leave due to the official closure of educational institutions and childcare facilities.
Employers are entitled to remuneration of one third of the remuneration paid to employees during the special care period by the federal government. The entitlement to remuneration according to the first sentence is capped with the monthly ASVG maximum contribution basis (currently: EUR 5,370.00) and must be asserted with the relevant tax office within six weeks from the day the administrative measures are lifted.
13. General information about the corona short-time working model
In this highly explosive and important case, there is still great legal uncertainty, as the legal situation changes almost hourly. Nevertheless, it should be emphasized at this point that the AMS (Austrian Government Service for Employees) is extremely cooperative and committed.
One speaks of short-time work if the working time is reduced in a company for a limited time in order to bridge economic disruptions. A special short-time working model was created to deal with the Corona crisis. This will make it possible to reduce working hours to up to zero hours and still remain in an upright employment relationship with almost full wage compensation. This is to keep as many people as possible in employment and avoid layoffs or amicable termination agreements. The AMS recommends the following procedure for this:
Obtain information from AMS or WKO or unions. The AMS is expecting an increased number of people to take action against the Coronavirus. In order to counter this and to reduce personal contacts to a minimum, we recommend that you contact us by phone or electronically via your eAMS account or by email.
Talks with the works council, if available
The employer must complete the following documents or conclude the related agreements:
• "Social partner agreement - company agreement" or "Social partner agreement - individual agreement" signed by the employer and the works council (in the absence of a works council: by all employees concerned) without the signature of the social partners (instructions for action)
• AMS application form (Corona). The application for short-time corona work can be submitted to the local AMS regional office as of Monday, March 16, 2020.
• Justification of economic difficulties (reference to Corona and follow-up). In any case, a brief explanation is sufficient here!
Transmission of these documents by the employer to the AMS (via eAMS account or by email)
AMS feedback to companies about approval / rework / rejection
Requirements for the short-time help that the AMS grants to companies:
• that the employer, in addition to the remuneration for the reduced working hours, also partially compensates the employee for the lost working hours (= short-time work support);
• a social partner agreement
• a company agreement, in companies without a works council individual agreements;
• the approval of the labor market service.
The AMS reports on the key points as follows
• Before the start of short-time work, employees must consume the vacation credit of previous vacation years and time credit in full. If the short-time work agreement is extended beyond 3 months, employees must consume a further 3 vacation weeks of the current vacation.
• Net wage guarantee: Employees with gross wages above € 2,685 receive a remuneration of 80% of the net wage received before short-time work, employees with gross wages between € 1,700 and € 2,685 receive 85%, employees with gross wages below € 1,700 receive 90%. The AMS bears the additional costs (up to the maximum contribution basis), not the company.
• Overtime during short-time work is possible. The business areas in which overtime should be permitted must be explicitly stated in the social partner agreement.
• The retention requirement after short-time work is reduced to 1 month. In special circumstances, this can also be omitted. Additional hired labor can also be deployed during this retention period.
• For vacation and sick leave during short-time work, the employee is entitled to the full wages as before short-time work. The principle of failure applies.
• The special payments are always to be paid on the basis of the wages (or gross wages, depending on the collective agreement) before short-time work.
• In addition, there are no effects of short-time work when processing old and new. The working hours or the wages before the introduction of short-time work must be assumed here.
• The normal working hours must be at least 10% in the entire short-time working period. It can also be zero at times. Example: short working hours of 6 weeks; 5 weeks 0%, 1 week 60%. If temporary workers are also to be included in short-time work, they must not be put on hold and an additional short-time work agreement is required from the agency.
• The location of normal working hours must also be agreed. The division "Monday to Thursday" and Friday as "free short-time working day" in the social partner agreement is only given as an example. Of course, z. B. restaurateurs or hairdressers as previously z. B. keep closed on Monday and set Tuesday as short-time working day!
• The normal working hours can be changed during short-time work in agreement with the works council, in companies without a works council with the employee. The union's obligation to consent does not apply. The social partners are only to be informed of the change - at least 5 working days in advance.
• Social security contributions are to be paid on the basis of the wages as before short-time work. The AMS is likely to reimburse the employer for the additional costs from the first short-time month.
• Corona short-time work can be completed for a maximum of 3 months. If necessary, an extension of a further 3 months after social partner discussions is possible.