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Coronavirus - Employment law update - Austria

  • Austria
  • Coronavirus - Workforce issues
  • Employment law

12-03-2020

1. Overview

Our previous briefing on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the CoVID-19 outbreak. In this briefing we address some of the more common questions raised by Austrian employers.

2. General Principles

Austrian employers should:

  • Monitor and follow advice and guidance from relevant authorities such as the World Health Organisation (“WHO”); the Ministry of the Interior as well as the Ministry of Social Affairs and other governmental bodies;
  • Take the necessary protective measures for employees and customers in consultation with the company doctor and/or the responsible health authorities;
  • Do not forget to involve any existing works council from the outset;
  • Inform all employees quickly about the measures taken - if possible (also) in writing;
  • Work closely with the relevant authorities, but avoid "informal" agreements - always request written orders (Bescheide) from the authorities;
  • Assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; on secondment or working away from home);
  • Review their need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved. Where possible, Home-Office Agreements should be arranged;
  • Review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance;
  • Update contact details for staff and management; and
  • Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19or who report symptoms and may have CoVID-19.

3. Employer’s duty of care – what does the law in Austria say?

Employers in Austria have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.

Employees are entitled to protection from potential exposure to CoVID-19. Employers are obliged, according to the Austrian Employee Protection Act (ArbeitnehmerInnenschutzgesetz - ASchG) and their duty of care, to take protective measures for the life and health of their employees and to minimise corresponding health risks. For employers, this means first of all evaluating whether there is a risk of infection during working hours and what measures can be taken to mitigate this risk.

Employers should consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government or the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

In order to prevent infection, especially in industries with a lot of customer contact, the employer could provide additional information on compliance with hygiene regulations (e.g. frequent disinfection of hands, switching off air conditioning). In addition, an employer may also order further hygiene protection measures. This could include, for example, the wearing of face masks. Employers should inform employees about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing etc).

Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of claims.

In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees; and explain the steps they are taking to monitor the situation.

4. Business travel – should travel be restricted?

Employers may also consider implementing policies to minimise the risk of employees catching CoVID-19 in the workplace, for example delaying or cancelling non-essential business travel and meetings. As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business. These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate. In considering whether staff should still travel, employers should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.

The government has published a list of those locations where it advises against travel (please check the website of the Federal Ministry for further information).

5. Flexible working - can an employer require staff to work flexibly?

Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties. Staff contracts may entitle the employer to require staff to work flexibly. If so, employers should normally consult with staff before exercising their rights to require flexible working and should listen sympathetically if staff have personal reasons why they cannot work flexibly.

If the employer needs employees to work outside the terms of their existing contracts then it will have to agree the flexible arrangements with the individual employee, or with the works council if one is in place.

Alternatively, if the reason for flexibility is personal to the employee, in that the employee is at risk of having been infected, then the employer would have good grounds for requiring the employee to work from home, provided their enforced removal from the workplace lasts no longer than is necessary and they are provided with support.

6. Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19. Employers should listen to the reasons for their concerns and try to find an agreed resolution. In principle, employees are not allowed to stay at home because they are concerned, unless there is a real risk of infection, for example where infection has already occurred in the immediate work environment. Where work can be undertaken from home, it may be possible to agree such arrangement for a short period.

In other cases, such as site-based work or where staff are unable to work due to caring for dependants, it may be possible to agree that time away is taken as holiday or unpaid leave. The employer may be able to provide support and advice via an existing Employee Assistance Programme. However, if an agreed resolution cannot be found and an employee refuses to attend work without good cause, disciplinary action could be considered.

Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

7. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance:

  • Infection: Staff who cannot work because they have been infected with CoVID-19 will normally be entitled to sick pay in the usual way.
  • Child Care: If the care of the child is necessary primarily because of the child’s age (children under 12 years), the employee is entitled to one-week nursing leave (Pflegefreistellung), or two-weeks in case for the care of sick children under 12 years. The employee is thus entitled to continued remuneration. Once the nursing leave has been consumed, the employee can take their annual leave without prior agreement with the employer. If there is not enough leave entitlement, the employee can still take leave, but in this case unpaid.
  • Quarantine: Under the Epidemics Act (Epidemiegesetz), employees who are prevented from performing work because of quarantine are entitled to remuneration for the duration of the quarantine. However, the employer can claim the employee's remuneration and the employer's contribution to the statutory social insurance (Dienstgeberanteil) from the federal government for the duration of the quarantine within six weeks.

Employers should decide how they intend to deal with such scenarios as part of their planning process. If they wish to require employees to use holiday in specific circumstances (for example, where employees have chosen to take holiday in a high-risk area and then have to self-isolate), this should be clearly communicated to employees in advance.

8. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work from high-risk areas and training managers to spot symptoms of CoVID-19.

Individual staff contracts may permit checks. A refusal to undergo a check when there are reasonable grounds for checking the employee’s health (for example, they appear ill or have been in a high risk area) may result in that employee being excluded from the workplace.

Employers can request staff to report if they are infected or have been exposed to infection and employees in any event have a duty to report infection under the implied duty of loyalty. However, under data protection law, such information about an individual’s health counts as a “special category” of personal data which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees with a particular nationality or ethnicity are singled out for checks.

9. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shut down period?

No, annual leave cannot be unilaterally ordered by the employer.

In case of a business closure by Public Health Authorities, the employer still has to pay employees’ salary. However, companies that suffer financial disadvantages (Verdienstentgang) as a result of, for example, individual employees being quarantined or whose business (hotel, restaurant, etc.) is temporarily closed down by an official order must register their claims with the Competent District Administrative Authority (Bezirksverwaltungsbehörde) within six weeks. This period begins with the end of the official measure, such as the lifting of quarantine on an employee - even if the company itself only learns about it later.

The six week deadline to register a claim is an absolute deadline. The application must be received by the authority before the end of the deadline. Any delay, even if caused by the postal services, will result in the loss of the claim.

10. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

  • Create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
  • Devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details
  • Ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention
  • Train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
  • Consider alternatives to travel such as using videoconferencing or webinars
  • Identify and track employees who are abroad and consider appropriate measures to support them
  • Identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations)
  • Consider any measures necessary to sustain widespread home working
  • Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility
  • Consider how temporary shutdowns of premises might be managed
  • Review their insurance coverage
  • Consider their stance on requests to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently.

11. Where can guidance from the Austrian government and international bodies be found and monitored?

The website of the Austrian Ministry of the Interior provides the latest official information on CoVID-19 in Austria: https://www.bmi.gv.at/news.aspx?id=7438416C4E7762504B54413D

The World Health Organization’s information on the CoVID-19 may be found here: https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Other useful links for employers are as follows:

https://www.sozialministerium.at/Informationen-zum-Coronavirus/Coronavirus---Haeufig-gestellte-Fragen/Coronavirus---Haeufig-gestellte-Fragen---Arbeitsrecht.html

https://www.bmeia.gv.at/reise-aufenthalt/reisewarnungen/

12. If an employer has a business operation in an affected area, what additional steps should be taken?

Companies operating in affected areas should comply with local regulations and guidance from international bodies such as the WHO. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill.

Beyond compliance with local laws, companies should ensure measures are taken to properly assess the risks to staff and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

13. Is there any obligation on a private employer to report any cases or suspect cases of CoVID-19 to the relevant local authorities?

In principle, according to the Epidemics Act, the employer has no legal obligation to notify the authorities if it suspects a case of CoVID-19 in the workplace. However, according to the employer's duty of care (Fürsorgepflicht) towards its employees, we strongly advise employers to contact the telephone Health Advice Service (+43 1450) in the event of suspected cases, to take advice on any recommended procedures (in particular, disinfection).

For more information contact

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