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Coronavirus – Employment law – Austria

  • Austria
  • Coronavirus
  • Coronavirus - Country overview
  • Coronavirus - Workforce issues

09-04-2020

In recent weeks, employers have been confronted with a lot of information from the media and official statements on the coronavirus. The third COVID-19 Act passed on April 4, 2020and brought further updates regarding special care leave which is funded by the Austrian government.

Update regarding special care leave

The first COVID-19 Act created the possibility of a three-week voluntary leave of absence (with continued payment of remuneration) for the care of children under the age of 14. The requirement for taking advantage of this special care period is that schools and/or kindergartens are closed due to official measures, but continue to offer care and employees are not entitled to time off work to care for the child (e.g. care or nursing leave).

With the third COVID-19 Act, such special care leave is also possible if an employee has to take care of a close relative whose caregiver is absent within the 24-hour care system or if care for relatives with disabilities is necessary.

The decision on this is made solely by the employer. The new regulation does not contain a legal entitlement to paid garden leave. Of course, it is not necessary to grant special care leave in blocks of weeks; individual working days can also be granted.

Employers who release their employees for the necessary care of their children or relatives in need of care are supported by the Austrian government with one third of the remuneration paid during the special care leave. The entitlement to remuneration is capped at the maximum monthly contribution basis under the General Social Security Act (Allgemeines Sozialversicherungsgesetz, ASVG), which currently amounts to EUR 5,370.00. Claims must be submitted to the competent tax office within six weeks of the date on which the official measure is lifted. The employer’s claim to reimbursement does not include wage costs and social security contributions.

Please note: The special care period is only subsidiary if the employees concerned are not entitled to time off work (care or nursing leave). Furthermore, special care leave can only be agreed until May 31, 2020.

Time off for employees of the COVID-19 risk group

In order to protect employees who are particularly at risk from coronavirus, who belong to the COVID-19 risk group and whose work also cannot be performed in the home office, a regulation was created by the third COVID-19 Act which is equivalent to a compulsory leave of absence from work with continued payment of remuneration.

According to the Act, employees and apprentices who can present a corresponding certificate (COVID-19 risk certificate) from their general practitioner are entitled to paid leave of absence from work, unless the employee concerned can perform his work in his or her home office or the workplace can be designed in such a way that an infection with the corona virus is ruled out with the greatest possible safety. However, this must also include measures for the journey to work.

According to § 735 ASVG, affected employees or apprentices should be informed in advance by the health insurance carrier about their assignment to the COVID-19 risk group. The definition of this general risk group should be based on medical knowledge and, if possible, be derived from the intake of pharmaceuticals.

The COVID-19 risk group

According to media reports, the COVID-19 risk group will include not only older people but also those who have a "massively reduced immune defence", e.g. after cancer, serious surgery, lung disease or diabetes.

However, workers employed in the critical infrastructure sector - including, for example, the care sector and the postal service - are excluded from this regulation.

A leave of absence on the grounds that the employee belongs to the COVID-19risk group shall apply provisionally until the end of April 2020, but may be extended by the Federal Minister of Labour, Family and Youth in agreement with the Federal Minister of Social Affairs, Health, Care and Consumer Protection by regulation until 31 December 2020 at the latest if the crisis situation persists.

During the period of leave, the workers concerned shall be entitled to their full remuneration. Employers (with the exception of the Federal Government) are entitled to reimbursement of costs by the competent health insurance institution. This entitlement to reimbursement includes the remuneration paid to the employee or apprentice, the employer's share of the social security contribution, the unemployment insurance contribution and other contributions.

The application for compensation must be submitted to the insurance company no later than six weeks after the end of the exemption period, which is why it is particularly important to keep this deadline in mind!

This is not a recommendation, but the employer must exempt these employees - if the conditions are met.

The law also explicitly states, that a dismissal by the employer, which is pronounced because of the use of this leave of absence, can be challenged in court.

Accidents in the home office are considered work accidents during the COVID-19 crisis

Many employees currently work in home offices due to coronavirus containment measures.

According to § 175 ASVG (General Social Security Act), an accident at work is an accident that occurs at the work place or on the way between home and the work place. Accidents on the way to the doctor, to the bank, at further education events or when the employee takes his child to school or kindergarten on the way to or from work are treated the same as accidents at work (§ 176 ASVG).

The distinction between a leisure accident and an work accident is important because in the case of a work accident the employee is not only entitled to longer sick pay but the employer has reporting and recording obligations.

The third COVID-19 Act created a special provision in the ASVG (General Social Security Act), limited to the duration of the measures to prevent the spread of COVID-19, to ensure that accidents in the home office are regarded as accidents at work. This means that accidents that occur in the home office in a temporal and causal connection (with work) are now also considered accidents at work.

Irrespective of this, there is still a need to conclude home office agreements with employees.

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