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In brief

Due to amendments to the Maternity Protection Act and the COVID-19 Measures Act passed at the end of 2020, there will be new legal restrictions in 2021 which must be observed by employers:


Contents

  1. Release from work for pregnant women
  2. Active voting age for the Works Council lowered
  3. Extension of the time period for releases of employees with a COVID-19 risk certificate
  4. Police are authorized to monitor the compliance with COVID-19 requirements at places of work
  5. “Testing in” instead of “testing free” (Freitesten)

Release from work for pregnant women

The increased risk of a severe course of COVID-19 infection for women in advanced pregnancy shall be reduced by a release from work.

  • If a pregnant employee is exposed to physical contact with other persons, the employer must as a first step try to avoid the physical contact and maintain the minimum distance by adjusting the work environment. Physical contact also occurs when gloves are worn or clothed persons are touched.
  • If physical contact with other persons cannot be avoided by adjusting the work environment, pregnant women are to be released from work with full continued payment from the beginning of the 14th week of pregnancy.
  • In case of such release, the employer is entitled to a reimbursement of the remuneration up to the maximum monthly contribution basis under the General Social Security Act. Thereby, the employer has to confirm that a change of working conditions or employment at another workplace was not possible due to objective reasons.
  • This provision applies temporarily until 31 March 2021.

Please note that the application for reimbursement must be submitted with the health insurance carrier no later than six weeks after the end of the release.

Retail sector: Please note that a law is currently being drafted according to which women are already to be released from work if they perform activities with customer contact (physical contact is not necessary). This law has not yet been passed.

Active voting age for the Works Council lowered

The active voting age for the works council was lowered from 18 to 16 years by an amendment to the Labor Constitution Act. As a result, all employees who have reached the age of 16 are entitled to vote for the works council as of 1 January 2021.

Please note: The requirement for the establishment of a works council is the employment of at least five employees with voting rights in the company. By lowering the voting age, the calculation of the required number of employees entitled to vote now includes all 16- and 17- year-old employees.

Extension of the time period for releases of employees with a COVID-19 risk certificate

Employees who submit a COVID-19 risk certificate are now entitled to be released from work and to continued payment until 31 March 2021, if they cannot perform work from home or the conditions at workplace cannot be arranged by appropriate measures in such a way that an infection with COVID-19 can be ruled out.

Police are authorized to monitor the compliance with COVID-19 requirements at places of work

Due to an amendment to the COVID-19 Measures Act, as of 23 December 2020, public security service organs (especially the police), at the request of the district administrative authorities (Bezirksverwaltungsbehörden), are authorized to monitor the compliance with the COVID-19 provisions at business premises and places of work. They are entitled to enter these places, inspect them and review all documents related to the compliance with entry bans and requirements and conditions related to the COVID-19 Measures Act, and to secure evidence. Public security service organs are not authorized to enter home-office workplaces.

Please note: The employer is obliged to allow access to the police, provide the necessary information and present the required documents.

“Testing in” instead of “testing free” (Freitesten)

The possibility of “testing free” as of 18 January 2021, which has been much discussed in the media has not been implemented after all. This means that the current third lockdown in Austria will last until 24 January 2021 for everyone. Retail, food service industry and tourism companies can also reopen at the earliest on 24 January 2021. It is currently being discussed for certain areas that a negative test result will allow access to certain events and locations (“testing in”). Also new weekly test for certain professions are planned.

Click here to access the German version: Österreich: Arbeitsrechtliche news 2021

Author

Philipp Maier joined Baker McKenzie Diwok Hermann Petsche Rechtsanwälte LLP & Co KG in 2009 as associate of the employment law practice group. Prior to that Philipp worked for several years in the employment law department of Freshfields Bruckhaus Deringer and in the litigation department of Wolf Theiss Rechtsanwälte. He also completed an internship at Aichelin Heat Treatment Systems (Detroit, USA).

Author

Simone Liebmann-Slatin joined Baker McKenzie in 2003 and is a member of the employment law practice group. Since 2011, Ms. Liebmann- Slatin is a senior counsel in the Vienna office. She regularly delivers presentations on issues related to employment law in Austria, and is an active contributor to various publications, including Die Presse and Kurier.

Author

Silvia Samek is a junior associate of Baker McKenzie's Practice Group Employment Law in Vienna. Prior to joining the Firm in December 2020, she completed her legal clerkship at various courts in Vienna and gained experience as a trainee in several renowned Austrian law firms. Silvia studied business law at the Vienna University of Economics as her main study. Additionally, she studied Executive Management at the FHWien University of Applied Sciences of WKW and European Economy and Business Management at the University of Applied Sciences BFI Vienna.