In the Austrian employment law, no stone is currently left standing. Following the legislative changes just a few weeks ago, a new Teleworking Act is now to be introduced.
The currently valid statutory provisions on home office - i.e. the regular performance of work in the employee's home or the home of a limited circle of relatives- are to be extended to also include premises located outside of home (such as cafés, parks, co-working-spaces, etc.). The aim is to improve the legal framework for work performance, in particular in light of the growing importance of ESG. By increasing the flexibility of the place of work, the expectation is primarily to achieve a better work-life balance and reduce the migration of employees from rural areas to urban centres or cities.
The proposed statutory definition of the term ‘teleworking’ may also permanently put an end to the practice of using the terms ‘home office’ and ‘teleworking’ interchangeably.
Last but not least, the current draft of the Teleworking Act attempts to harmonise employment, social security and tax regulations to a greater extent than its predecessor, the Home Office Act.
Changes to employment law
One of the most significant amendments in employment law concerns Section 2h of the Austrian Labor Contract Law Amendment Act (AVRAG). According to this provision, home office is currently defined as the regular performance of work at an employee’s home, whereby in the term ‘home’, both the main residence and any secondary residence as well as the home of close relatives and partners are included. In future, ‘home office’ is to be replaced by ‘teleworking’ and the statutory and practical conditions are to be extended. More specifically, teleworking is defined as the regular performance of work by an employee - in particular using the necessary information and communication technology - at home or at a location other than the company's premises. The explanatory notes to the draft law indicate that even a rough connection between the work performance and the use of information and communication technology, e.g. reviewing paper documents, which were previously printed out in the company, is sufficient.
The places of work will therefore, in contrast to home office, include not only the employee's home, but also the home of an even extended and legally defined circle of relatives. Additionally, coworking-spaces, i.e. – according to the draft law – organisationally furnished office spaces rented by the employee but not by the employer, and any other freely chosen locations (e.g. internet cafés) are also to be considered as places of work. The requirement for a written agreement on teleworking, for evidentiary reasons, is to remain in force; however, such an agreement will have to specify the intended premises for teleworking.
Changes to social security law
There will also be changes to the statutory provisions relating to accidents at work, particularly due to the - more or less - free choice of working place by the employee. In future, a distinction is to be made between accidents at work during teleworking in the narrower sense and teleworking in the broader sense. Teleworking in the narrower sense involves accidents in the home of the insured person (i.e. the employee) or certain relatives as well as in coworking-spaces. Teleworking in the broader sense, by contrast, occurs when the work is performed at other locations chosen freely by the employee.
The distinction is particularly relevant for coverage of accidents occurring on the way to or from work. In the case of teleworking in the narrower sense, accident coverage should be privileged, albeit subject to special conditions with regard to teleworking in the homes of relatives or in coworking-spaces. In fact, accident coverage should only apply to accidents occurring on the way to and from the aforementioned premises if they are ‘close to the home’ of the insured person (i.e. the employee) or the employee's (regular) place of work, or if the distance from the employee's home to the aforementioned premises equals the usual route to work. In the case of routes to more distant locations as well as teleworking in the broader sense, accidents during the actual work performance should be protected by the statutory accident insurance, but the route to and from these locations should not be protected. The explanatory notes to the draft law justify these restrictions by indicating that when travelling to more distant or other teleworking locations the employee's personal interests as a rule take priority. In comparison to the initial explanatory notes to the ministerial draft, which considered the employee's own economic interests to be "inevitable" in these situations, a somewhat softer approach has been implemented instead.
Changes to tax law
With regard to tax law, the present draft mainly retains the previous, respective current, regulations, however, the term ‘teleworking’ is to be used uniformly in future. One example of this is the proposed Section 26 (9) of the Austrian Income Tax Act (EstG), which will continue to apply and currently regulates the home office allowance. The new ‘teleworking allowance’ is to remain at a maximum of EUR 3 per exclusive teleworking day for a maximum of 100 days per calendar year. This allowance, totalling up to EUR 300, however, is explicitly non-taxable only if the teleworking days, including the allowance paid out, are shown on the payslip. Employers will therefore have to observe their corresponding documentation and supervision obligations.
Other changes
The change in the terminology from home office to teleworking will require corresponding amendments to other legislation as well. This will particularly affect the Labor Constitution Act (ArbVG), the Labor Inspection Act (ArbIG) and the Employee Liability Act (DHG).
Outlook
After completion of the parliamentary procedure and publication in the Austrian Official Law Journal, the main legislative changes are due to come into force on 1 January 2025 and will apply to newly concluded teleworking as well as existing home office agreements as of that date.
Although the proposed legislation has incorporated some of the points criticised in the ministerial draft of the Teleworking Act, it again leaves a number of other points open. For instance, there are still numerous undefined legal terms and the insurance cover for accidents on the way to work during teleworking in the broader sense is also not entirely resolved. In this context, however, the explanatory notes to the government bill explicitly refer to the "possibility of (carrying out) teleworking in Austria and abroad". Among other things, this raises the legitimate question of whether it can be assumed that teleworking should not be limited to Austria. Although certain changes to the planned legislation cannot be precluded, employers are nevertheless already well advised to consider the potential impact on their company and factor in potential adaptations to existing works council agreements as well as individual agreements.
