Labour law update: The new COVID 19-Short-Time Work

In Austria, COVID-19 short-time working has been extended for the third time. However, the Public Employment Service (AMS) has already demanded the recovery of allegedly unlawfully received aid. But not only this raises some questions. More and more employees are also being segregated due to COVID-19. Here the employer has to continue paying the salary, but has a claim for reimbursement against the federal government. This is questionable, however, if the employee not only tests positive but actually falls ill. 

We briefly summarise for you:

The new COVID-19 Short-Time Work as of 1 October 2020

Since 2 October 2020, phase 3 of COVID-19 short-time work can be applied for retroactively from 1 October 2020. As of 3 November 2020, however, only applications submitted prior to the start of the short-time work period will be admissible. The maximum duration is limited until 31 March 2021. 

A new social partner agreement, that differs substantially from the previous one, must be concluded either as a works agreement or, in companies without a works council, as an individual agreement. 

The application must now contain an economic justification which, in addition to information on turnover developments prior to short-time work and turnover forecasts during the short-time work period, must also state whether other subsidies have been granted. If short-time work is applied for in relation to more than 5 employees, a tax consultant, accountant or auditor must confirm this information.

The normal working hours applicable before the start of short-time work must be between 30% and 80% on average over the duration of the short-time working period. If the number of hours worked falls below 30%, the short-time work subsidy is cancelled or reclaimed. Exceptions may be granted - even during ongoing short-time work - up to 10% of the original normal working time and with special economic justification. Employees must be notified of such a change at least 3 days in advance so that it has to be applied for in good time.

The net reimbursement rate of 80% / 85% / 90% of the net remuneration before short-time work is still to be paid to employees on short-time work. Revocable overtime lump sums are now only not to be included in the assessment basis if they have actually been revoked.

The assessment basis now has to be increased by the amount by which the minimum wages are increased under the collective agreement, but also by collective bargaining biennia, collective bargaining advances and collective bargaining increases due to reclassifications. Increases between 1 March 2020 and 31 March 2021 are only to be taken into account if they have not already increased the assessment basis. 

The assessment basis must be recalculated in the following events of changing normal working hours during short-time work:

• Part-time work for education, care, old age, reintegration or agreed parental leave
• In the case of changes during short-time work or within 30 days before its start, if:

• changes were agreed at the latest 31 days before the start of short-time work, or
• there is a legal or collective legal entitlement to the changes (e.g. in the case of an entitlement to part-time employment under § 15h of the Maternity Protection Act).
  
  

Employees are obliged to undergo initial or further training offered by the employer. Under labour law, prescribed periods of initial and further education and training are regarded as working time and, under the law on subsidies, as "cancelled" hours. They do not count towards the 30% minimum working time. Training periods in excess of the net reimbursement rate are to be remunerated separately by the employer. The employer may order premature interruption or discontinuation. The employee has the right to catch up on the training. A reimbursement of costs cannot be agreed with the employee.

If holidays from previous holiday years and time credits have already been used up, 1 week of the current holiday entitlement should be consumed as far as possible during short-time work.

Recovery of Subsidies by the AMS

For a short time, it was claimed that the short-time work subsidy from phase 1 would be recovered if the employee concerned had not already been employed in the company for at least one month. After heavy criticism, the AMS has now made it clear that it will refrain from doing so. 

For short-time work subsidies from phase 2 onwards, however, a previous fully-paid calendar month is in any case a prerequisite.

Entitlements to Reimbursement in case of COVID-19 and Sick Leaves

Employers are unfortunately increasingly confronted with the fact that their employees are separated from the health authorities either after a positive Covid-19 test or as a contact person of a person who was tested positive and are therefore no longer allowed to be engaged as before. 

The Epidemic Law is the legal basis for this measure. In addition to the legal prerequisites, responsibilities and formal requirements, it also regulates the financial consequences of the isolation. 

A segregated employee is generally entitled to continued payment of remuneration by the employer. However, the employer is reimbursed by the federal government for the continued payment of remuneration, including the employer's share of social security contributions. The employer must apply for this within three months of the end of the separation. The competent authority is the health authority which issued the segregation.

None of this is an issue if the employee can be deployed despite segregation - especially in the home office. He/she then continues to perform his/her work and of course receives the regular remuneration for this.

It is unclear whether the employer is entitled to reimbursement if an employee has such severe symptoms that he/she is unfit for work and therefore on "sick leave". In this case there is a claim to continued payment of remuneration due to illness against the employer. It is questionable whether there is then a claim for reimbursement against the Federal Government, which is probably not the case. In our opinion, however, an employee is not entitled to remuneration if he or she has caused the infection with COVID-19 through gross negligence (e.g. participation in a "Corona Party"), whereby the question of provability arises in practice.   

There is in general still no claim for reimbursement if a business is closed down due to a measure under the Covid-19 Measures Act ("lockdown"). Apart from the possibility of unilaterally sending employees on leave or time off within certain limits, the only option left for the employer concerned is to take advantage of any state aid packages.