Coronavirus guidance for employers in Austria

Authors
Birgit Vogt Majarek
Partner at Schima Mayer Starlinger
birgit.vogt-majarek@sms.law
Karoline Saak
Associate at Schima Mayer Starlinger
karoline.saak@sms.law

As the first cases of coronavirus have been confirmed in Austria during the last two weeks and the virus is spreading in Italy, it is essential for Austrian employers to know about their and their employee’s duties. This article provides guidance.

 

 

The coronavirus has quickly spread in and from China but has also affected many other countries, particularly Italy, one of Austria’s border countries and an important business partner, where more and more cases of coronavirus occur.

 

The Austrian Ministry for Social Affairs, Health, Welfare and Consumer Protection together with the Austrian Agency for Health and Food Security has set up a 24-hour hotline, where experts answer questions about coronavirus. The hotline number is: 0043 800 555 621. In addition an emergency health hotline (number 1450) has been set up. People can call this number when they believe that there may be a coronavirus infection (due to contact with infected persons or the like).

 

 

Rights and duties of employees

 

Although at the moment there is a lot of uncertainty with regard to the health aspects of coronavirus, such as its spread and transfer, employees basically do not have the right to unilaterally decide to stay at home, unless there is an objective risk (and not only a theoretical possibility) of getting infected at work. For example, an objective risk might be a colleague with whom the employee had personal contact being infected (tested positive by the authorities or an authorised doctor).

Furthermore, employees are not entitled to refuse to work with certain colleagues (or customers), just because they believe that they may be infected (e.g. because they have Chinese family background, or because they have recently returned from one of the affected countries). A refusal to work with certain people could be considered a general refusal to work and even as discrimination in the workplace. Both of these could lead to dismissal of the employee if there is no objective justification. Employees who work professionally with (potentially) sick people, such as hospital staff and doctors or pharmacists in general, have no right to stay away from the workplace, even if they may have contact with infected people. 

If employers fail to meet their legal obligations to protect the health of their employees, this will be a justification for employees to prematurely terminate their employment under paragraph 26 of the Austrian White Collar Employee Act.

Conversely, employers are not allowed to unilaterally require employees work from home, if there is no objective reason for it and if the possibility of (partial or constant) remote working was not previously agreed upon in the employment contract. In practice several companies have already agreed with their employees to work remote pending further notice and to reduce business travels (especially flights) between their home and offices abroad, especially for employees working internationally.

As long as the authorities do not order people to wear face masks or other protection, employees have neither the right nor the obligation to wear them. This particularly applies in areas where the employees have contact with customers. Although there is huge demand for these masks and they are sold out in many places, according to the Austrian Agency for Health and Food Security they provide no proven actual protection against the coronavirus.

 

 

(Business) travel

 

At the time of writing, the following are considered ‘high risk countries’ according to the website of the Austrian Foreign Ministry: China, parts of Italy (Piedmont, Emilia-Romagna, Lombardy, Veneto), South Korea, Iran, Hong Kong, Japan, Singapore. The Austrian Foreign Ministry has issued travel warnings for certain regions in China, Italy, Iran and South Korea based on coronavirus risk.

Employers therefore cannot send employees on business trips to these regions and if they are still required to do so, the employees may refuse to go without consequences for their employment (any reprisals will not be legal). However, it is generally recommended employers avoid sending employees on business trips to risk areas and/or to business events with a large number of participants even if the destination is not on the ‘high risk’ list above.

 

 

What about employees who plan to travel or have travelled to a high risk country for holiday? If an employee travels to a high-risk country and then either gets infected with the coronavirus or gets stuck in a place because of quarantine (see more specific information about quarantine below) he or she is not entitled to continued payment from the employer for the time of absence from work, if the risk in that place or places was already known when he or she started travelling.

Employees and employers should keep track of the Austrian Federal Ministry for European and International Affairs website to check the updated list and information on high-risk countries and travel warnings. In addition, employers should require their employees to notify them immediately if they travel or return from a country with increased risk, to give employers the opportunity to take additional measures in connection with their duties of care towards other employees (such as, for example, ordering a health check for travelling employees). In case an employee gets infected with the coronavirus he or she has to notify the employer immediately (for further measures see below).

 

 

Employees who are in quarantine or infected

 

The coronavirus was recently included in the list of diseases of the Austrian Epidemic Act (Epidemiegesetz). According to this Act, employers are basically obliged to pay their employees even if they cannot come to work due to a sickness listed under paragraph 1 of the Epidemic Act, either because they are held in quarantine (due to contact with infected individuals or similar) or because the employer’s business must be shut down because of (possible) infection. This happened to an Austrian hotel in which a person was tested positive recently. Payment to employees in this case is calculated based on their regular average income according to the White Collar Employee Act and the Continued Remuneration Act (for blue-collar workers). Employers can apply to the federal government for reimbursement of the continued payments due to application of these measures.

Should an employee get infected with the coronavirus this is treated as “normal sick leave” and the payment obligations of the employer that come with it, so that there are no such obligations in case of intent or gross negligence by the employee. Additionally, employers should inform the Austrian authorities that an employee in their entity has been infected and have to follow any further measures mentioned in the Epidemy Act and or on the authorities websites in such cases (like quarantine, information obligations regarding contact etc.).

 

 

Childcare

 

Schools where a student or teacher may be infected with the coronavirus have been and will possibly be shut down for the time necessary to take appropriate health measures. Should the parents of a child need to stay at home to take care of the child they basically have the right to do so with continued remuneration, as this is (according to the prevailing view) considered to be a so called ‘reason for suspension from duty’ (Dienstverhinderungsgrund), which allows parents to stay at home with their children until they have found an alternative. However, given their duty of care towards the employer, employees are required to try to come to work if there is a possibility to do so. This may be the case if the children affected are old enough and responsible, meaning they may spend some time at home alone, or if there are grandparents, that may be able to take care of the children for some time during the day, or if the children could possibly spend some hours at a friend’s house.

Parents of a child that gets infected with the coronavirus are (aside from the fact that they should not come into the office anyway to avoid the risk of infecting others) entitled to paid ‘care leave’ for basically one week for children over the age of twelve, and for up to two weeks for children under the age of 12 under specific circumstances according to paragraph 16 of Austrian Paid Vacation Act (‘Urlaubsgesetz’). After this time, they basically need to use their annual leave while staying at home; if they still require more time they would basically be entitled to unpaid vacation for the period during which the employee’s personal care for the child is required.

 

 

Business developments and short time work

 

Some employers may for a certain period of time experience a (possibly severe) reduction of business or orders because of the strict rules and limitations regarding trade with and tourism from China and some other countries mentioned. Generally, it is not possible to send employees unilaterally on unpaid leave for such periods. Of course, employers can tell employees that they are not required to come to the office, but generally they will still need to pay them. It is therefore advisable for employers who need fewer staff than usual, to agree with them (as far as possible) on the use of compensatory time and/or vacation time to deal with this period without employers having to make redundancies for business reasons. Furthermore, there are additional legal possibilities for what is known as ‘short time work’ that can be put into effect by the Government at short notice to support employers in the current situation and avoid negative consequences such as mass dismissals.

The spread of the coronavirus represents an exceptional situation especially for hospitals, institutions and laboratories responsible for combating the virus. In order to make their work easier, a Government decree of 4 March 2020 authorises derogations from existing provisions: it allows derogations from working time regulations, for example, working time limits or rest periods. In addition, there are accommodations in place concerning the (normally) required notification of extensions of working hours in connection with exceptional cases. Given the current challenging situation, there will be no such requirements for the extension and no criminal charges for violations.

As Austria is not amongst the high risk countries, but there are confirmed coronavirus cases as in many countries worldwide, neither employees nor employers need to take further steps for the moment, but are of course advised to check the relevant news and info pages of the Austrian ministries, where latest news, numbers and recommendations are updated every 24 hours.

 

Visit our Coronavirus Resource Page and find the information and tools you need to help you manage your international workforce in these times of crisis.

 

Firm: Schima Mayer Starlinger

 

Find an IUS Laboris lawyer

For more details or any specific matters, feel free to get in touch with the authors or search for a local lus laboris employment lawyer.

Our lawyers
The view from other places
 

Select topics and stay in touch with the latest developments.

Sign up