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Coronavirus - Employment law update - Austria

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

04-03-2020

The "Coronavirus" is currently a hot topic. While the media and the public are hyperventilating, companies need to keep a cool head and deal with the relevant legal regulations in good time. What is to be done if employees are quarantined or if the authorities threaten to close your business? Who will pay for the resulting damage and what deadlines must be observed? Read below what you should be prepared for from a legal perspective.

Legal bases, coercive measures, impending penalties 2

Claim compensation for loss of earnings correctly and in time. 3

Concrete measures if your company is affected. 4

Effects on existing contracts 5

Employers‘ duty of care. 6

01

 

"Coronavirus" - legal bases, coercive measures, threatening punishments

Legal basis

The main legal basis under Austrian Law is the Austrian Epidemic Act (Epidemiegesetz). By decree of the Minister of Health, the disease caused by the "novel coronavirus" (neuartiger Coronavirus) was included in the list of notifiable diseases and thus made subject to the provisions of the Epidemic Act. On 28 February 2020 a further ordinance was issued, which now also allows the restriction or closure of commercial enterprises in the event of the occurrence of relevant infections.

What coercive measures can be ordered by the competent authorities?

  • Restrictions of operation or closure of commercial enterprises;
  • Isolation of sick or suspected sick persons ("quarantine");
  • Traffic restrictions for certain locations;
  • Traffic restrictions in relation to foreign countries;
  • Restrictions on the movement of certain goods;
  • Disinfection or closure of rooms or buildings;
  • Exclusion of certain persons from educational establishments or closure of such establishments (schools, kindergartens, universities, etc.);
  • Prohibition of events.

Who can order these measures and how are they enforced?

These measures are ordered and implemented by the responsible health authorities (Ministry of Health and District Administrative Authorities). For the purpose of carrying out examinations, disinfection measures, etc. they are entitled to enter flats or houses and under certain conditions also to carry out house searches. The organs of the public security service (police) are required to support these authorities in the implementation and enforcement of these measures at their request.

In other words: if there is a suspicion of an infection caused by the "coronavirus", the competent authorities may not be prohibited from entering company premises, otherwise access can be enforced by force, involving the police.

What are the penalties for breaking the law?

Violations of the provisions of the Epidemic Act are punishable by administrative fines of up to EUR 2,180. More serious, however, are the consequences according to §§ 178 et seq. of the Austrian Criminal Code (Strafgesetzbuch - StGB): According to this provision, anyone who intentionally commits an act that is capable of causing the risk of spreading a notifiable disease among humans is threatened with a prison sentence of up to three years - or up to one year if committed negligently.

Georg Röhsner

02

 

"Coronavirus" - Claim compensation for loss of earnings correctly and in time

Natural or legal persons who suffer a loss of earnings because they

  • are quarantined themselves (without having already fallen ill);
  • live or work in a place subject to traffic restrictions;
  • work in a business whose activities are restricted or even closed down; or
  • operate such a business themselves,

are entitled to request compensation for this loss of earnings from the Federal Government. Affected employees are entitled to continued payment of their salary by their employer; their claim to compensation for loss of earnings in the above sense is transferred to the employer upon payment (who must then assert this claim against the Federal Government). The claim is only valid for the period of the concrete effectiveness of the measures.

There is no claim against the Federal Government for compensation of additional or indirect damages, such as

  • customers staying away after reopening;
  • continued payment of employees’ salaries who have to meet childcare obligations due to the closure of schools or kindergartens, or similar;
  • costs of preparing trade fairs and similar events cancelled at short notice;
  • damage caused by the non-performance of suppliers or service providers whose operations are closed or whose employees are quarantined.

Attention: There is no claim to compensation if a business is closed or if employees are sent home as a precaution without an official order. Therefore, in any case you should insist on an official order by the competent authority.

Assertion of such claims

Companies that suffer financial disadvantages as a result of, for example, individual employees being quarantined or whose business (hotel, restaurant, etc.) is temporarily closed down by 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.

Attention: This deadline 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!

We are very happy to answer any further questions or to represent you in the assertion of these claims!

Georg Röhsner Partner

Eversheds Sutherland

03

 

"Coronavirus" - Concrete measures if your company is affected

If employees or customers (e.g. in restaurants or hotels) are suspected of being infected with the virus or are even actually ill, rapid and considered action by the company is required.

  • 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;
  • If employees are affected by quarantine measures, they must also receive corresponding notifications from the authorities. Try to obtain copies of these notifications as soon as possible (in the form of mobile phone photos or similar if necessary). You will need these for asserting your claim for compensation against the Federal Government;
  • Stay in contact with the affected employees to find out whether the disease has actually broken out (then the normal rules for the case of illness and sick leave apply) or whether the quarantine will be lifted (there should also be an official notification of this);
  • According to Austrian law, if the authorities consider closing a plant, this may only be done,

"when extraordinary dangers make it seem necessary." A closure may therefore be only the last resort. Inform the authorities in good time and try to avoid such official measures - if necessary by suggesting less drastic measures;

  • In the event of closure, insist on an official order (Bescheid) - under no circumstances should you "voluntarily" close or restrict the plant (otherwise you will lose any right to compensation);
  • Immediately collect the necessary documents to prove your loss of earnings. You have a maximum of 6 weeks to assert a concrete claim for compensation at the responsible District Administrative Authority! If this period threatens to expire without you having received all the required documents, you should, as a precaution, claim the highest possible amount (you can still reduce your claim afterwards, however it is not possible to extend your claim after the deadline).

We are happy to support you in these measures, in negotiations with authorities and in the timely assertion of your claims.

Georg Röhsner Partner

Eversheds Sutherland

 

04

 

"Coronavirus" - Effects on existing contracts

If you are not able to provide contractually agreed services or meet deadlines due to official measures, inform your contractual partners immediately about this circumstance and try to reach agreements about changed deadlines etc. Here too, clear and honest communication often helps to avoid later disputes.

Check the contracts you have concluded to see whether they contain provisions for such cases (usually classified as "force majeure") and what rules are stipulated for such cases. We are happy to support you in this examination.

If there are substantial delays or if your contractual partner requires the delivery/services on a fixed date, he can usually declare withdrawal from the contract. However, agreed contractual penalties are only due in such cases if the contract clearly stipulates such penalties (and if it is explicitly stipulated that such penalties shall be due regardless of fault).

The same rules apply in reverse if your supplier/service provider is affected by such problems. In both cases, however, there must be a direct link between the delay in delivery and the official measures (if two employees are quarantined in a company with 1,000 employees, this will usually not be sufficient).

Georg Röhsner Partner

Eversheds Sutherland

05

 

"Coronavirus" – Employers’ duty of care

How should employers react?

Employees are entitled to protection from potential exposure to the coronavirus. 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.

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 hygiene protection measures. This could include, for example, the wearing of face masks.

In particular, it is necessary to identify "employees at risk” who have travelled to or returned from the regions at risk and to instruct them to undergo a medical examination. The employer cannot, of course, provide full protection, as there always remains a certain risk of infection despite such measures.

If there is a concrete suspicion of infection or if an employee is actually infected, the employer not only has an increased duty of protection towards his other employees, but is also obliged under the Epidemics Act to report this to the competent authorities and to provide them with appropriate information. Employers are free to temporarily close their business. In this case, however, they must put their employees out of work and must continue to pay their salary. Please note, however, that such a voluntary closure of the business means that you have no claim against the Federal Government for compensation of loss of earnings or reimbursement of employees' salaries (see the articles above).

What to do in case of an official quarantine?

Employees who are quarantined by the District Administrative Authority are still entitled to their regular salary pursuant to the Epidemics Act (Epidemiegesetz) and the Continued Remuneration Act (Entgeltfortzahlungsgesetz - EFZG). In this case, the employer is entitled to reimbursement of these costs from the Federal Government. In addition to the regular salary for the period of quarantine, this includes the employer's contribution to social insurance (and any surcharge under the Construction Workers' Leave and Severance Pay Act (Bauarbeiter-Urlaubs- und Abfertigungsgesetz)). The claim for compensation must be lodged by the employer with the competent District Administrative Authority within 6 weeks of the date on which the official measure was lifted. Under Austrian labour law, a quarantine is considered an “other reason of absence from work” (“sonstiger Dienstverhinderungsgrund”). Only when it is certain that the employee is actually ill, this becomes a case of sick leave.

Is an employee allowed to stay at home or refuse business trips for fear of infection?

Employees may generally only stay at home if there is a home office agreement with the employer or if the employer exceptionally allows temporary work from home. An unexcused absence from work without a corresponding agreement may lead to consequences under employment law, from a warning to termination of the employment relationship.

There is also no general right of the employee to refuse business trips. Here the relevant provisions in the employment contract must be considered. However, even without an express written agreement in the employment contract, the employee is obliged to go on business trips if this is typically associated with the agreed job description and the employee must expect to be ordered to go on business trips. If an employee has to go on a business trip, he/she only has a right of refusal towards his/her employer if he/she has to travel to a concretely endangered area for which a travel warning exists (to be found on the homepage of the Austrian Ministry of Foreign Affairs).

For the purposes of employee protection, the employer is obliged not to expose employees to any physical danger. As things stand at present, an employee cannot refuse to go on a business trip to Italy or China (if the trip involves only regions not affected by coronavirus). Here too, however, each case must be considered individually, as a potential risk of infection may differ between employees. In this regard, not only the destination of the business trip must be taken into account, but also whether the employee has a chronic illness and the employee’s age.

Our advice to employers

Follow the guidelines by WHO and the Federal Government, consider preparing an emergency plan and adjust these protective measures accordingly. Is home office an alternative for your business? The key is to plan ahead so that your company is well prepared.

 

 

eversheds-sutherland.at

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