The Home Office measures of 2021, which have been in force since April 1st, 2021, were created by the federal government in cooperation with the social partners and the Federation of Austrian Industries in the course of the Covid-19 pandemic. Due to the increasing digitalization, which simplifies working at other places than the company’s premises, working from home or at other places outside the office is becoming increasingly important for employees.

The Ministry of Finance and Social Affairs, the insurance institutions covering accidents, the social partners and the Federation of Austrian Industries have therefore agreed on an amendment to the Home Office Act (Section 2h of the Employment Contract Law Adaptation Act, AVRAG). The review period for the draft runs until May 21st, 2024.

Homeoffice vs. Teleworking

Home office refers to the regular performance of work at the employee's home (official place of residence). This is to be distinguished from teleworking, which is not performed at the employee's place of residence but at other locations outside the company. In the past, the terms teleworking and home office were often used synonymously and there was no legal definition of either term. 

Legal regulations on Home Office

Section 2h AVRAG, which defines home office as “the employee regularly performing work from home”, sets out the legal requirements for the introduction of home office. It came into effect on April 1st, 2021. According to the explanatory notes “home” is defined as the employee's private home (house or apartment) at their main or secondary residence as well as the home of a close relative or partner.

Conversely, if the employee does not work from home on a regular basis or works at locations other than their private home, this does not constitute home office within the meaning of Section 2h AVRAG and is therefore considered as teleworking.

Teleworking Act

Section 2h AVRAG is now to be extended to a Teleworking Act. Accordingly, the draft covers working outside the employee's private home - for example at relatives' homes, in libraries or coffee shops. In contrast to the previous provision, the intended title of the new provision reads "Telework", clarifying that the regulations on home office now also apply to work outside of homes/residential buildings.

Teleworking within the scope of Section 2h AVRAG is given when an employee regularly performs work - using certain information and communication technologies - at their private home or at another location of their own choosing outside the company's premises (Section 40 para 4 Labor Constitution Act). Therefore, in addition to the employee's main or secondary residence and the home of relatives, coworking spaces or other locations (such as internet cafés) are considered as locations for teleworking.

The requirement to work with certain information and communication technologies does not mean that the work performed in the context of teleworking must be carried out exclusively by using technical means. The work needs to be performed in connection with information and communication technologies. The employee might as well work partly with other means, such as the review of paper documents, if these documents have previously been printed out (e.g. on the company's premises).

For teleworking, the employee needs to work repeatedly outside the company's premises on a regular basis. If the employee works outside the company's premises only on an occasional basis, without the intention to make further regular assignments outside the office, that does not constitute teleworking within the meaning of Section 2h AVRAG.

Teleworking, as working from home, requires a written agreement between employer and employee, and cannot be enforced unilaterally by either party. The employer is obliged to provide the necessary (digital) work equipment, but employer and employee can agree otherwise. In that case, the employer must provide the employee with reasonable and necessary reimbursement.

Outlook

Once the review period has expired, the draft will be submitted to the National Council for a vote. The amendment is scheduled to come into force on January 1st, 2025. It remains to be seen how the Teleworking Act will be implemented in practice and what advantages and disadvantages it holds for employers and employees.