- At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?
The obligation to pay the salaries of employees who are prevented from providing their work due to the measures has been the subject of a controversial discussion.
Consequently, the legislature has introduced a legal clarification whereby these federal measures fall in the sphere of the employer. The employer is responsible to pay the salary even if the employee is prevented from providing their work. In return the employer may order the employee to consume some amount of his/her vacation entitlement and positive time credits.
- Employee affected by COVID-19
The employer has to pay the salary according to the general system of paid sick absence without special distinction to COVID-19.
- Employees quarantined but not sick
Employees who are quarantined by an administrative act are entitled to their full salary. In this case, however, the employer can claim a refund for the paid salary from the federal government.
- Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).
Employees who belong to the risk group of vulnerable persons, as defined by the legislature, can receive a COVID-19 risk certificate by their doctor. Employees with these risk certificates are entitled to a paid leave of absence, if their work cannot be done via home office or the employer cannot guarantee with greatest possible security that an infection at the workplace is impossible
- Employees with a relative falling into the category of vulnerable persons.
There is no general entitlement for paid leave of absence for employees with relatives falling into the category of vulnerable persons.
- Employees who can no longer perform their work due to school closures and the need for childcare.
In general, if there is no other option for childcare for younger children in case of hardship, employees can be entitled to paid absence for up to one week.
Schools in Austria, however, are open for supervision and care of children, but not for education. Therefore, the employee is not entitled to a paid leave of absence for childcare.
If, however, the business of the employer is closed by federal measures, the employer may voluntarily grant the employee a paid leave of absence for childcare up to three weeks and receives a third of the salary cost from the federal government under some circumstances.
- In your country, can the company make redundancies during this special period, often referred to as a « health emergency »?
There are no special rules regarding making redundancies during this “health emergency”. Therefore, the general laws apply and employment relationships may be terminated under the same conditions as before.
If, however, a company makes use of short time work, it is obliged to keep the same number of employees until up to one month after the end of the short time work period. Furthermore, during this period the company can terminate employment relationships only under strict conditions.
- When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?
In general, the employer has to ensure that the risk of infection for the employees and customers is as low as possible. Therefore, the employees have to maintain a minimum distance of 1 meter to any other person. If this is not possible, the employer is obliged to implement further protective measures.
If employees are in contact with customers, the employees have to wear a mask covering mouth and nose.
Furthermore, the legislature has issued differentiated rules for different sectors of business (e.g. gastronomy, accommodation business, etc.).
- What are the main aid and compensation to which the company is entitled, for example in the event of short time working or « loss of earnings » compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?
Companies can apply for short time work support, whereas the normal working time of the employee has to be reduced between 10 % and 90 %. In this case, the employee is entitled to a net guarantee of between 80 % and 90 % of the former salary and the employer receives a subsidy for the lost working hours by the Austrian Unemployment Agency, which covers most of the additional costs arising from the net guarantee. Short time work can be applied for 3 months and can be extended for another 3 months.
During the short work time period and up to one month after it, the employer is obliged to keep the same number of employees and the employer can terminate employment relationships only under strict conditions.
Furthermore, the company can receive subsidies for employees who are quarantined by an administrative act or who are granted paid leave for childcare under some circumstances (see above).
With no regard to labour law, there are further state aids including hardship funds, bridging loans and fixed cost subsidies.
- During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?
In general, holiday leave can only be mutually agreed upon by the employer and the employee. The employer is not entitled to order the employee to consume his/her holiday unilaterally.
If, however, federal measures lead to the temporary shutdown of businesses, the employer may order the employee to consume some amount of his/her holiday entitlement and positive time credits.
Increased working time can be ordered with regard to the general maximum working time according to the working time act. Furthermore, the company may also end an already applied short time work sooner, if there is no more need for it.
Main urgent texts related to COVID-19 in labour law:
Christian Marchhart and Pius Winklmary : firstname.lastname@example.org