Austria: Status quo – Which regulations apply to employment relationships due to the re-opening following 19 May 2021?

In brief

In view of the COVID -19 situation, Austria will re-open as of 19 May 2021. The legal framework implementing the re-opening steps is the COVID-19-Re-Opening-Directive. For now, this directive is in force until 30 June 2021.


Contents

Key takeaways

The most relevant regulations of this directive in employment contexts are the following:

  • If possible, employees should perform work from home. If the work takes place on-site, the employer must ensure that employees maintain a minimum distance of two meters and wear mouth-to-nose protection (simple mask). An FFP2 mask is only mandatory in exceptional cases.
  • The employer must require a proof of "low epidemiological risk" from certain categories of employees. This applies in particular to employees who are in direct contact with customers or employees who work in warehouse logistics.
    • Evidence of a "low epidemiological risk" means, inter alia, a negative COVID-19 test result. Proof of COVID-19 testing must be repeatedly provided in a period of seven days.
    • Moreover, a "low epidemiological risk" can also be demonstrated by proof of vaccination with a COVID-19 vaccine approved for the Austrian market (this applies after a period of 21 days regarding the first part of the vaccination) or, for example, by a medical certificate confirming a COVID-19 infection in the last six months.
    • The employee is obliged to keep the individual proof available during working hours. Key data (name, date, period of validity) of such proof may be processed and temporarily stored by the employer.
    • If an employee refuses to provide any proof of "low epidemiological risk", the employee is obliged to wear an FFP2 mask instead. Thus, in an employment context, the COVID-19-Re-Opening-Directive does not oblige employees to mandatorily get tested or vaccinated after all.
  • If the employer provides a company car, the employer must instruct employees to transport only two persons per row of seats (including the driver) and to wear an FFP2 mask during time of transportation.
  • Employees who are part of a COVID-19 risk group remain entitled to paid time-off upon presentation of a COVID-19 certificate. This applies, however, only in the case that the risk of COVID-19 infection can neither be excluded on-site nor work from home is an actual option. For now, the claim to paid time-off remains in force until 31 May 2021.
  • Certain categories of business operations, as well as business operations employing more than 51 employees, are obliged to appoint a COVID-19 representative and develop a COVID-19 prevention concept.
    • The COVID-19 representative has to be familiar with the company's COVID-19 prevention concept, the local conditions and with the company's organizational processes. The COVID-19 representative may be an employee or an external person. The COVID-19 representative functions as the key contact person vis-à-vis authorities and monitors the compliance with the COVID-19 prevention concept.
    • The COVID-19 prevention concept must reflect a state-of-the-art approach to minimize the risk of infection with SARS-CoV-2. The concept shall include, for example, specific regulations covering hygiene measures, use of sanitary facilities, behavior in the event of a COVID-19 infection.
  • Face-to-face meetings with more than 10 individuals must be notified by the employer to the competent district administrative authority at least one week in advance. The notification requirement does not apply to meetings necessary for maintaining professional activities per se. This provision provides for legal uncertainty. Virtual meetings are, therefore, still recommended. Meetings of the workforce in accordance with the Austrian Labor Constitution Act are exempted from the notification requirement.
  • Violations of the COVID-19-Re-Opening-Directive may result in administrative fines of up to EUR 1,450.00 for employees and, in severe cases, may lead to the termination of the employment relationship. Moreover, certain violations by employers may even trigger fines of up to EUR 30,000.00 per case. 

Conclusion

The individual provisions of the COVID-19-Re-Opening-Directive in employment contexts are quite similar to those regulated by the previous directive concerning COVID-19 measures. In fact, the only new content is the remodeled requirement of “proof of a low epidemiological risk". In any case, the COVID-19-Re-Opening-Directive generally does not implement a COVID-19 testing requirement, or even vaccination requirement, for employees. 

Click here to access the alert in German.


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