COVID 19 – HR/Employment law: Legal Update
The Austrian legislature adopted three new legislative packages over the weekend (5-6 April 2020), to address the ongoing COVID 19 pandemic. These are the 3rd, 4th, and 5th COVID 19 laws, which adapt 85 existing laws and include 7 new laws. These packages have primarily focused on subsidies and financial support, changing little concerning employment law, but we have summarized the relevant points to keep you informed:
1. Paid service exemption for risk groups on presentation of a COVID 19 risk assessment:
Employees who belong to a risk group are entitled to paid time off work (initially until 30 April 2020) upon presentation of a COVID 19 risk assessment. This does not apply if:
- the work can also be performed in the home (home office),
- the working conditions in the workplace (and the route to the workplace) are designed by appropriate measures in such a way that infection with COVID-19 can be ruled out with the greatest possible safety,
- the person concerned is employed in critical infrastructure areas.
The employee is informed by the health insurance company about the assignment to the general risk group. The assignment is made by a group of experts. Based on the general assignment, the employee’s physician must assess the individual risk situation and, if necessary, issue a medical certificate.
In this case, however, the employer is entitled to reimbursement of the remuneration paid, and the employer’s share of the social security contribution, unemployment insurance contribution, and other contributions by the health insurance institution. The application for reimbursement must be submitted to the competent health insurance institution no later than six weeks after the end of the leave of absence.
TIP: A legal definition of the risk group has not yet been made and, to our knowledge, is not (any longer) planned. In order to be able to make an approximate estimate in advance of how many employees in the company are affected by the leave of absence, you can refer to the criteria on the homepage of the labour inspectorate (Arbeitsinspektion). For employees whose assignment is unclear to you, ask for a medical certificate from the employee’s family physician or specialist.
2. Special care period – expansion of the group of persons
Already at the beginning of the COVID 19 pandemic, employers were given the opportunity to voluntarily grant special care time for up to three weeks to employees who are caring for children, up to the age of 14, or for people with disabilities for whom care is mandatory, if their care facility is (partially) closed. Employers are entitled to one third of the salary paid to employees during the special care period by the federal government (capped with the monthly ASVG maximum contribution basis of 5,370 euros gross). You will find details on this in our previous updates and newsletters.
Such a special care period is now also to be made possible in cases where, due to a lack of available care staff, 24-hour care within the meaning of the Home Care Act, or personal assistance for people with disabilities, is no longer available, and the employee takes over the predominant care of a relative (all blood relatives and elective relatives) from the time of discontinuation. Cases are also recorded in which people with disabilities are cared for at home on the basis of a voluntary measure by the institution or voluntary removal from the institution.
Special care time can now be agreed until 31 May 2020 (and no longer only until 30 April 2020); for the processing of applications for remuneration by the federal government, the regulations apply beyond this date.
3. Changes in connection with the length of service of the works council
Already with the 2nd COVID-19 Act, the period of activity of the bodies of the company representation of interests, as well as the disabled persons’ representatives, was extended, which ends in the period from 16 March to 30 April 2020. This is until the date when new bodies have been elected (within the periods provided for) and when they have been constituted. This extension of the term of office now applies to all bodies of workplace representation of interests, as well as to trusted employees with disabilities, whose work ends in the period from 16 March to 31 October 2020 (and no longer just 30 April 2020). The extension is due to the fact that the preparation of a corresponding election would otherwise not be guaranteed for all bodies, which could lead to a period of unrepresented work in companies.
4. COVID-19 bonus payments remain free of social security and tax up to EUR 3,000
Bonus payments or allowances granted to employees for their work during the COVID 19 crisis will remain tax-free in 2020, up to an amount of 3,000 euros, and as such will also be exempt from social security contributions. The payments may not have been granted previously and may be made solely for the purpose of rewarding work in connection with COVID-19. Rewards that are paid on the basis of previous performance agreements are therefore not tax-free.
5. Reminder: Accidents in the home office are considered as work accidents
For the duration of the crisis, the home office is considered a place of work, and thus an accident in the home office is considered an accident at work.
TIP: In connection with safety at the home office workplace, we recommend that you draw the attention of your employees to any safety or employee protection regulations that may have to be observed (e.g. for working with a computer screen) – which the employer is also obliged to do – and to provide any necessary work equipment.
6. Commuter allowance despite home office
With regard to the commuter allowance, it was clarified that this is also due, even if the distance between home and workplace is no longer covered (or not every working day) due to the current COVID 19 crisis.
7. Side note: Bridging financing in connection with short-time work
Even in the context of short-time work, companies must in principle bear the financial burden for the time being, i.e. until the short-time work subsidies are actually paid out. However, according to information from the Austrian Federal Economic Chamber, banks now also want to make a contribution to supporting companies in this pre-financing and have made a voluntary commitment. According to this, pre-financing of short-time work will be granted on the basis of an application approved by the AMS and the actually expected subsidy. This voluntary commitment does not apply to companies at risk of going out of business under the URG.
In accordance with this voluntary commitment, the AMS application form will now also be adapted directly, but this is not yet available online. Further information on this financing option can also be found in German here.