Impact of the corona virus: labour law
11/06/2020 - Reading time: 2 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 social partners have reached an agreement with the Federal Government on extending short-time working beyond 30 September 2020. The new, adjusted short-time working model will apply beginning with 1 October 2020. 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 applica-tion for short-time work periods starting November 1, 2020, may be submit-ted until Friday, November 20, 2020. After that date, only applications di-rected 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 ap-proval of other subsidies, sales development before short-time working and forecasts for the period applied for are queried. If short-time working is ap-plied for more than five employees the information given in the form has to be confirmed by a tax advisor/accountant/auditor. For employers directly af-fected by the lockdown (official closure) or employers that apply for short-time work only for November 2020, no confirmation by tax advi-sors/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 agree-ment. 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%. Retroactive application for short-time work starting 1 November 2020, may be submitted until 20 November 2020. During the lockdown working hours can be reduced completely; this may result in an average reduction of working hours exceeding 70 % / 90 %.
- 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 al-ready 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 remuner-ation 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 lumpsum compensation for overtime is also considered overtime compensation within the above meaning, irrevocable lump-sum 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.
The limited special care period again has been introduced for the period 1.10.2020 to 28.2.2021. According to sec 18b par 1 Austrian law amending the labour contract law (Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG) employers can (again) grant their employees a special care period of up to three weeks with continued payment of remuneration, whereby half of the continued payment is remunerated by the federal government up to the basis of monthly maximum contribution according to the General Social Insurance Act (Allgemeines Sozialversicherungsgesetz, ASVG) (2020: EUR 5,370.--; expected for 2021: EUR 5,550.--). Lastly the social partners concluded, that employees will be entitled to spe-cial care time in the future.
Thus the Federal Ministry of Labor, Family and Youth issued a directive on special care time. The possibility of ordering a special care period is subject to the following conditions:
- The employee's manpower is not necessary for the maintenance of the respective business;
- the employee has a duty of care for
- at least one child who is under 14 years of age on the first day of the special care period used;
- relatives of persons with disabilities; or
- relatives of persons in need of care;
- there must be no other entitlement to spare time off work for care.
The special care period can be granted by the employer for up to three weeks "in a row", on a weekly, daily or half-day basis.
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.
In addition, the Second COVID-19 Act clarified that measures entailing a prohibition or restrictions to entering business premises taken within the scope of the COVID-19 Measures Act obligate the employer to continued remuneration payment even 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 according to the Third COVID-19 Act, the regulation accidents during teleworking (home office) are insured as occupational accidents until 31.12.2020.
COVID-19 is a notifiable disease. It is primarily doctors, laboratories and nursing staff who are obligated to report notifiable diseases. Employers – except for owners of catering or bar businesses – are not obligated to report. The employers’ general duty of care which includes the protection of the employees’ health, obliges the employer to take appropriate precautional measures. This comprises, for example, ensuring that sufficient possibilities to wash and/or disinfect one’s hands are available or reducing social contacts (e.g. cancellations of meetings, company trips or seminar participations).
If employees become infected with COVID-19, there is no difference to other diseases from a legal perspective. If in case of suspected infection quarantine is ordered by public authorities, payment of the respective employee’s remuneration is to continue pursuant to the Continued Salary Payment Act (Entgeltfortzahlungsgesetz). These expenses are reimbursed by the federal government. This claim must be asserted within six weeks starting with the day the actions of the public authority are lifted.
If the employer itself orders precautional measures which have not been ordered by public authorities (e.g. voluntary quarantine after return from a crisis area), remuneration must continue to be paid. Employees who, based on their own decision, want to stay away from the workplace, must do so within the scope of a vacation leave or by taking compensatory time off – provided that no other agreement has been reached.
For home office, a contractual basis between employer and employee is required in general. A unilateral instruction to work from home is only possible within very narrow limits.
If the employer issues instructions which exceed the scope of orders issued by public authorities and, in particular, affect the employee’s private life, such instructions are not binding on the employee. Nevertheless, employees have to behave in a manner ensuring that the employer’s legitimate operational interests are safeguarded. This includes the employee’s obligation to inform the employer if he/she has had contact with a person having been tested positive for a coronavirus infection or if he/she has visited an area for which a travel warning has been issued. Furthermore, the employer may demand from any employee to comply with the recommendations issued by the public authorities insofar as, in individual cases, this is not opposed by overriding interests of the employee.
Employees are not obligated to comply with the employer’s instruction to undergo a test for a coronavirus infection. According to general principles, checking systems affecting human dignity require the working council’s approval. This also applies to systematic checks for possible coronavirus infections (e.g. mandatory taking of temperature).
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