COVID-19 Update: Labour law
01/25/2021 - Reading time: 5 minutes
Attorney at Law
In the field of labour law, the measures to mitigate the consequences of fighting the spread of the coronavirus concern, in particular, short-time working and special care time for parents.
The Federal Directive (Bundesrichtlinie) on short-time working aid adopted on 1 October 2020 (KUA-COVID-19) regulates short-time working in connection with the utilisation and granting of a short-time working aid to companies in order for them to be able to provide short-time working support to employees due to the reduction of working hours. Access to short-time working will be facilitated and the scope of application will be expanded.
The significant changes regarding short-time working are as follows:
- Short-time working period will be extended by six months. Anyone who has already applied for short-time work phase 3 (from October) can subsequently apply to reduce the average working time to 10%. A retroactive application for short-time work periods starting November 1, 2020, may be submitted until Friday, November 20, 2020. After that date, only applications directed to the future are possible.
- The social partners will enter into an agreement on short-time working within 48 hours after a works agreement on short-time working (or, in businesses without a works council, the individual agreements with the employees) has/have been entered into. This social partner agreement is the prerequisite for the support of short-time working by the public employment service.
- In order to get access to short-time working additional economic justification must be provided by the employer; thus the Public Employment Service provides employers with a special form in which key figures such as the approval of other subsidies, sales development before short-time working and forecasts for the period applied for are queried. If short-time working is applied for more than five employees the information given in the form has to be confirmed by a tax advisor/accountant/auditor. For employers directly affected by the lockdown (official closure) or employers that apply for short-time work only for November 2020, no confirmation by tax advisors/accountants/auditors is required.
- All employees subject to compulsory unemployment insurance contributions, including members of managing bodies, are eligible to funding insofar as they are insured under the General Social Insurance Act (Allgemeines Sozialversicherungsgesetz, ASVG). The same applies to apprentices provided they are mentioned in the personal scope of application of the social partner agreement. However, the new social partner agreement template provides for the possibility of excluding individual groups of employees.
- Starting with the first month, employer contributions (except for contributions to the employee provision fund) including incidental wage costs will be covered by the AMS in their entirety.
- Within the short-time working period the average working hours must not amount to less than 20 % or more than 70 % - in special cases more than 90 % - of the standard working hours provided for by law or agreed within the scope of a collective agreement, or, in case of part-time employees, of the contractually agreed standard working hours. Short-time working may temporarily lower the workload to 0%. Employers who have already applied for short-time work phase 3 (starting from October) can subsequently apply to reduce the average working time to 10%. The approval of a short-time working case with a planned working time loss of more than 90% on average is only possible for companies of the ÖNACE 2008 classifications if and to the extent that they work less than 10% during the lockdown. A working time loss of more than 70% requires the explicit consent of the entities covered by the collective bargaining agreement. A working time loss of one hundred percent is possible within the short-time work period.
- During reduced working hours advanced training can be attended. During the lockdown employers have no training obligation for apprentices.
- The employer must endeavour to ensure that unused vacation leave from prior years and time credits are consumed before or in the course of short-time working. The employer must be able to evidence that he has made a real effort to persuade his employees to consume unused vacation leave from prior years and time credits. The new social partner agreement template obligates employees to consume unused vacation leave from prior years and time credits before or in the course of short-time working if this is demanded by the employer. In case vacation leave and time credits have already been used up, a week of the current vacation should be consumed during short-time working as far as possible.
- The agreed level of employment generally has to be maintained for the period of short-time working as well as, if applicable, for an additionally agreed period after the termination of short-time working (retention period).
- Referring to the calculation of payment during short-time working wage increases (e.g. through KV increases or collective bargaining advancement) will be taken into account.
- The employer must cover the costs of the work performed by persons working short time. The short-time working aid ensures a minimum net remuneration in accordance with the following scaling:
- in case of a gross remuneration before short-time working in the amount of up to EUR 1,700, 90% of the last net remuneration;
- in case of a gross remuneration before short-time working in the amount of up to EUR 2,685, 85% of the last net remuneration;
- in case of a gross remuneration before short-time working in the amount of up to EUR 5,370, 80% of the last net remuneration;
- in case of apprentices, 100% of the last net remuneration;
- for parts of income exceeding EUR 5,370, no aid shall be due.
- A higher remuneration on a voluntary basis is possible provided that it is in compliance with the funding conditions.
- Employees in catering affected by the lockdown receive a monthly tip of EUR 100 net from their employer, which the AMS reimburses.
- The AMS will reimburse the employer for the cost of the cancelled working hours in accordance with the flat rates set out in the directive. However, the support related to short-time working is based only on the remuneration for standard working hours. While bonuses and premiums have to be taken into account in this context, overtime compensation does not. Revocable lump-sum compensation for overtime is also considered overtime compensation within the above meaning, irrevocable lumpsum compensation for overtime and parts of all-inclusive compensations earmarked for compensating over-time work, if any, are not.
- The maximum number of eligible cancelled working hours per accounting month is calculated based on the total of standard working hours per accounting month under the collective agreement
- minus the paid working hours actually worked in an accounting month (including overtime worked as well as the vacation and time credits consumed in the accounting period);
- during sick leave minus the working hours actually envisaged for this period; as well as
- during continued remuneration payment pursuant to section 1155 (3) Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) minus the working hours actually envisaged for this period.
During the lockdown, the occupational activity should "preferably" take place outside the workplace, provided this is possible and the employer and employee agree on the work to be performed outside the workplace.
At the place of occupational activity, a distance of at least two meters must be maintained and a tight-fitting mechanical protective device (mask) covering the mouth and nose area must be worn in closed rooms if physical contact cannot be ruled out or the risk of infection cannot be minimized by other measures (formation of fixed teams, installation of partitions, etc.). Stricter agreements on the wearing of masks may be reached between employers and employees. In addition to these measures,
- employees of elementary educational institutions who are in direct contact with children as part of their care and support;
- teachers who are in direct contact with students;
- employees in warehouse logistics areas where the minimum distance of two meters cannot be maintained on a regular basis;
- employees in direct contact with customers; and
- persons involved in party communications in administrative agencies and administrative courts
may enter work locations only if an antigen test for SARS-CoV-2 or a molecular biology test for SARS-COV-2, with a negative test result, is performed at least every seven days. Proof of this must be presented to the employer and kept available for a period of seven days. If this proof cannot be presented, a respiratory protection mask of protection class FFP2 (FFP2 mask) without an exhalation valve or an equivalent or higher standard mask must be worn for customer contact, contact with children or schoolchildren as well as for party traffic and in warehouse logistics.
Meetings in accordance with the Labor Constitution Act (e.g. works meeting) are also permitted during the lockdown if they cannot be postponed and cannot be held in digital form.
Special care period
Pursuant to Section 18b (1) AVRAG as amended by Federal Law Gazette I No. 131/2020, employees are now entitled to special care period of up to four weeks if the following conditions are met:
- for the necessary care of children up to the age of 14 for whom care is mandatory, from the time of the official closure of educational institutions and childcare facilities. The employee shall notify the employer immediately after becoming aware of the closure and shall do everything reasonable to ensure that the agreed work performance takes place; or
- if a child up to the age of 14 for whom there is a duty of care is isolated under section 7 of the Epidemic Act of 1950; or
- if there is a duty of care for persons with disabilities who are cared for or taught in an institution for persons with disabilities or an educational institution for persons with disabilities or a school providing higher education, and this institution is partially or completely closed due to official measures, or due to voluntary measures the care of persons with disabilities is provided at home; or
- for relatives of persons in need of care, if their care or assistance is no longer ensured as a result of the failure of a caregiver under the Home Care Act (Hausbetreuungsgesetz); or
- for relatives of people with disabilities who use personal assistance when personal assistance is no longer provided as a result of COVID-19.
Employers are entitled to compensation from the federal government for the remuneration paid to employees during the special care period. The claim is capped at the maximum monthly contribution base under the ASVG (EUR 5,550).
Working hours and rest periods
It is to be noted that Austrian working time law (section 20 (1) of the Austrian Working Time Act (Arbeitszeitgesetz, AZG), section 8 (1) of the Hospital Working Hours Act (Krankenanstalten-Arbeitszeitgesetz, KA-AZG) and the Austrian Rest Periods Act (section 11 (1) (1) of the Rest Periods Act (Arbeitsruhegesetz, ARG) provide for exceptions in exceptional cases. It has also been set out that a required number of employees can be tasked with activities in connection with the delivery or carriage of goods in the sector related to food trade and chemist’s shops (Drogerien) and drugstore chain stores (Drogeriemärkte) during weekend and holiday rest periods.
Continued remuneration payment
Measures taken within the scope of the COVID-19 Measures Act entailing a prohibition or restrictions to entering business premises obligate the employer to continued remuneration payment if, due to such measures, the employees are unable to provide their services. Upon the employer’s demand, the employees are obligated to consume a maximum of eight weeks of unused vacation leave and time credits, with leave entitlements from the current employment year not having to be consumed in an extent exceeding two weeks. Time credits subject to conversion into monetary claims governed by collective sources of law are exempted from the above obligation. Numerous questions remain unanswered in the context of this provision. Hence, for example, it is unclear what is to be done in cases where employees have already agreed on a vacation leave during the summer holidays and have no remaining vacation leave that could be consumed in the current situation.
Furthermore, accidents during teleworking (home office) are considered occupational accidents until March 31, 2021.
Alignment of workers and employees
The alignment of the notice periods of workers to employees is postponed to July 1, 2021, due to the COVID-19 crisis.With the postponement, the extended notice periods for blue-collar workers will only apply to terminations of employment pronounced after June 30, 2021. The provisions currently in force shall continue to apply to terminations of employment of workers pronounced before July 1, 2021.
Attorney at Law