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Coronavirus – Employment law update - Austria

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Premature termination of short-time work

Short-time work can be applied for a maximum of 3 months and generally ends with the agreed date. If the economic situation develops differently than originally expected, point II. of the social partner agreement (Sozialpartnervereinbarung) states that the employer can prematurely terminate the original concluded short-time work agreement. The employer may choose a specific date for termination. However, the employer has to immediately inform the public employment service (Arbeitsmarktservice, AMS) and the contracting parties of the social partner agreement (in particular the Chamber of Commerce (Wirtschaftskammer), the competent trade union, the works council or the respective employees) in written form. In companies, where a works council is established, this notification must be signed by the chairman of the works council and the employer. Employees must also be informed good in time, because the contractually agreed working time applies to employees after the end of short-time work.

When short-time work ends, the AMS must be provided with a payroll list (Abrechnungsliste) for the last calendar month and an implementation report (Durchführungsbericht), which must in any case contain information on maintaining the number of employees and the compliance with the minimum and maximum number of hours lost (Ausfallsstunden). An implementation report for the retention period (1 month after the end of short-time work) must also be submitted to the AMS by the 28th day of the month following the end of the retention period.

Attention: Premature termination of short-time work should be carefully considered, as after the date of termination the employer is no longer entitled to AMS allowance. In many cases, it is not yet possible to assess how the economic situation will develop in the next weeks. If short-time work is terminated prematurely, a loss of working time of less than 10% and more than 90% in the averaging period until the premature termination date is not permissible. In this case, there is even a risk of losing the AMS allowance.

Moreover, it has to be noted that in the event of a premature termination, the working hours worked in short-time work are also included in the calculation and can therefore have far-reaching consequences on the entitlement to and the amount of the short-time work allowance, which is paid by the AMS.

Anyone who does not want to terminate short-time work prematurely, can use the possibility of changing the fixed working time according to the social partners agreement. Also in this case, the consent of the works council is required or in case of an individual agreement with the individual employee the employee’s consent is mandatory. If an agreement is concluded, the social partners must also be notified 5 working days before the planned change is introduced. A separate notification to the AMS is generally not necessary as long as the workload of the employees employed in short-time work does not exceed 90% during the entire short-time work period.

Introduction of protective measures at the workplace

Fever measurement before entering the company, wearing mouth protection at work - what is allowed?

Can the employer unilaterally oblige the employee take their temperature ("fever measurement") before entering the company?

Some employers have started to take the body temperature of their employees without contact before starting work to contain COVID-19. While this may seem reasonable under the circumstances, it can be prohibited either, under labour and data protection law.

Employees cannot be unilaterally obliged to take a fever measurement before entering the company, as this is a violation of the personal privacy. This is only possible with the consent of the employee. If a works council is established, it is even necessary to involve the works council.

From a data protection point of view, mandatory fever measurements for employees may be inadmissible if less stringent means (e.g. questioning of employees) are available to check the state of health. Furthermore, it should be noted that fever is only one of the symptoms of a possible infection with COVID-19. Employees must, however, report any suspicion of an infection within the framework of their duty of loyalty to their employer.

Can the employer unilaterally oblige the employee to wear protective masks during working hours?

Whether the employer may unilaterally oblige employees to wear a protective mask depends on the place of work. An obligation to wear a protective mask is required only in certain areas and for certain occupational groups according to the latest regulation (COVID-19 Lockerungsverordnung).

Especially in industries with a lot of customer traffic (especially in retail shops) employers have to ensure that employees wear a well covering protective mask as a barrier against droplet infection; especially if there is no other suitable protective measure between the persons for physical separation (e.g. Plexiglas shield), which guarantees the same level of protection. In addition, a distance of at least 1 meter from other persons must be maintained.

On the other hand, in offices without customer contact, a distance of at least one meter must be maintained. However, according to Sec 3 of the latest COVID-19 regulation, wearing of a protective mask must be mutually agreed between employer and employee.

Employers have a legal obligation to protect the health, safety and welfare of their employees (and others) so far as is reasonably practicable by putting in place measures, which reduce risks to the lowest level possible.

Wearing a face masks or face protection is only one of the measures that an employer can take to reduce the risks connected to COVID-19. It should be noted that there is a difference between medical grade face masks and (often home-made) cloth face coverings and there is no medical consensus on their effectiveness or use. Nevertheless, an employer may consider that the provision of face masks or coverings provide a level of reassurance to the workforce and it is a visible representation of the steps being taken to protect them.

Where there is no obligation to wear a protective mask, but the employer intends to introduce a "protective mask obligation" in the workplace, the consent of the employees is required. In any case, we recommend that this be recorded in written form. In addition, the employer should check how the obligation to wear protective masks can be implemented in practice, particularly with regard to the required number, availability, frequency of clean disposal, etc.

Do employers and employees have to keep a minimum distance at the workplace?

In general, a minimum distance of 1 meter between persons must be maintained at the place of work unless the risk of infection can be minimised by suitable protective measures. This can be done by wearing protective masks or by spatial separation between the persons. However, shaking hands or hugs at the workplace should still be avoided.

If the minimum distance of 1 meter cannot be maintained due to the profession itself, the risk of infection must be minimized in any case by taking suitable protective measures. It is important here that it must be the profession itself that does not allow the required minimum distance. If the minimum distance cannot be maintained due to the available space, either spatial measures must be taken to ensure that the minimum distance can be maintained, or the number of employees in the room/area must be reduced to such an extent that the minimum distance of 1 meter can be maintained.

Of course, we are also happy to assist in the preparation of checklists and catalogues of measures to help you to provide optimum protection for your employees.