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Coronavirus - Implications for Employers

The spread of the coronavirus (COVID-19) and the associated exceptional situation is paralysing economic life in Austria and throughout Europe. The interaction between the labour law and economic situation of companies is inherent in the current crisis situation. The following presentation in the form of a Q&A list provides an overview of the most important questions for employers related to the coronavirus.

1.
A suspected case/infection has occurred in the business – is the employer allowed to give specific names to the workforce?

This concerns particularly sensitive information for which data protection law provides for special protection. The use of this data is nevertheless permitted insofar as this is necessary for the purpose of virus containment and for the protection of people. In this context, careful consideration must be given to each individual case. If the general information to the staff that an infection has occurred in the business is sufficient, no names may be disclosed. This does not apply, for example, if it is necessary to trace who had contact with the infected person or suspected case before it became known.

2.
May the employer require the employees to take a temperature measurement ("fever measurement") before entering the business?

In the news, we see time and again how public security organs take temperature/fever measurements of people at neuralgic points. From a data protection point of view, mandatory fever measurement of employees is inadmissible because there are less stringent means (e.g. questioning of employees) for monitoring their state of health. It should also be borne in mind that fever is only one of several possible symptoms of possible infection.

3.
May the employer keep lists of external persons who enter the business (visitor lists)?

Yes, the data collected in this way can be used to the extent necessary to inform visitors about a case of infection in the business and thus prevent the spread of the virus.

4.
Is the employee obliged to provide the employer with private contact details so that he/she can be informed quickly of any suspected case or case of infection within the business?

The employee cannot be obliged to disclose private contact details. However, if the employee is voluntarily willing to cooperate, temporary storage of the contact data for short-term information of the employees, for example with regard to risks or suspicious facts, is permissible.

A sample form for the collection of contact data, which complies with data protection regulations, can be downloaded at: www.dsb.gv.at/informationen-zum-coronavirus-covid-19-.

5.
Employees are now increasingly working from their home office - what should they pay particular attention to when handling data?

For activities in the home office, the data security requirements of Art 32 para 1 DSGVO, which defines the measures to be taken to ensure an adequate level of data protection, must be observed in particular. Employers are recommended to share a relevant information sheet with their employees. This can be downloaded at: https://www.dsb.gv.at/documents/22758/23115/Informationsblatt_der_Datenschutzbehoerde_Datensicherheit_und_Home-Office.pdf/18c65716-537a-4a21-a835-f201428a9b98.

6.
The employer cannot offer employees a home office solution - what must be taken into account?

It must be ensured (e.g. by spatial or work organisation measures, such as allowing only a specific number of persons in certain rooms or the establishment of so-called "discretion zones") that a distance of at least one metre can be maintained between employees at the workplace, unless the risk of infection can be minimised by appropriate protective measures. This could be achieved, for example, by installing Plexiglas panels between the workplaces. For occupational purposes, means of mass transport may continue to be used, provided that the safety distance is maintained.

7.
An employee has fallen sick with the coronavirus disease - what are his or her entitlements?

First of all, from a labour law perspective, a COVID-19 illness is not to be assessed differently from any other incapacity to work ("sick leave"). The employee is therefore basically entitled to continued remuneration in accordance with the statutory provisions. Other rules may apply if the employee has caused the illness through gross negligence (e.g. through deliberate contact with an infected person or a voluntary trip to a danger zone). This will be the case, for example, if the employee undertakes a (holiday) trip to an area for which an upright travel warning from the Federal Ministry for European and International Affairs exists. The current list can be found at https://www.bmeia.gv.at/reise-aufenthalt/reisewarnungen/. Since 12 March 2020 a worldwide travel warning is in effect. In addition, there is now a de facto restriction on travel opportunities due to the massive restriction of air traffic and the progressive closing of borders. In any case, it is advisable to inform the employee of this risk when a trip becomes known.

8.
Who must pay for the claims of the sick or quarantined employee?

The employee’s entitlement to continued remuneration at first is (as in the case of other sickness or incapacity situations) against the employer. The fact that the coronavirus was included in the list of notifiable diseases under the Epidemics Act by regulation of the Federal Minister of Social Affairs, Health, Care and Consumer Protection means that employers may, under certain circumstances, be able to take recourse to the Federal Government in case of measures according to the Epidemics Act. A corresponding claim for compensation (regarding the paid remuneration plus the employer's share of the statutory social security contributions) must be submitted to the competent district administrative authority (Bezirksverwaltungsbehörde) within six weeks. The same applies to employees who are quarantined by the competent district administrative authority. Quarantine does not formally constitute illness and therefore is deemed as other reason for incapacity to work from an employment law perspective. However, also in such case, the employee is entitled to continued remuneration and the employer has the right of recourse.

It has to be taken into account that the provisions of the Epidemics Act only apply in cases of officially imposed quarantine. In the case of the Federal Government’s precautionary closure of the retail, service and gastronomy sector, the provisions of the Covid-19-Fund Act apply. See our article on "Corona short-time work and continued remuneration".

9.
Must the employee notify the employer of an infection with the coronavirus?

It follows from the employee's duty of loyalty that an infection with the coronavirus must be reported to the employer. Only the corresponding information enables the employer to fulfil his duty of care towards the other employees and to take any necessary measures and to be able to claim compensation for the frustrated continued payment of remuneration.

Deliberate concealment of an infection can justify a dismissal with immediate effect. The same applies in the event of an untruthful answer to a specific question regarding a stay in a danger zone or contact with an infected person.

10.
What must the employer do in case of a suspected case of infection in the company?

First of all, it has to be noted that not every employee who suffers from indisposition or even illness is automatically a suspected case of coronavirus infection. A suspected case is a person who has symptoms and complaints of an acute respiratory disease and who has had contact with a confirmed coronavirus case or visited a particularly endangered region in the 14 days before the symptoms appeared.

Employers must protect the life and health of their employees and take appropriate precautions as a consequence of legal obligations and the mandatory duty of care to. If there is concrete suspicion of infection of one or more employees, appropriate measures must therefore be taken. In individual cases, this may mean that the affected employee is immediately suspended from work at least for the duration of the incubation period (both WHO and ECDC currently assume 14 days) up to a closure of the entire undertaking if this is the most appropriate measure to prevent the spread of the coronavirus. In addition, any employee who is a suspected case should be instructed to have the situation medically clarified.

The other employees should be informed of any suspected case. In addition, employers are advised to inform the district administrative authority if a suspected case occurs.

11.
May employees refuse to undertake ordered business trips?

In the current situation, business trips are hardly possible anyway due to the extensive curfew and air traffic limitations. But even if these measures are relaxed, it should be noted at first that the basic obligation to undertake business trips must result either from the employment contract or conclusively from the nature of the work. With regard to the specific question of refusal to take part in a business trip, a distinction must be made as to whether or not the trip is to lead to a known endangered area. However, it should be noted in this context that in the present situation employers are required to engage employees only in the form and to the extent required by the specific activity. First of all, it must therefore be assessed in each case whether a business trip is actually absolutely necessary in the specific situation or whether alternatives (such as telephone or video conferences) are possible.

A right of refusal in any case comes into consideration for business trips to particularly endangered regions, which are particularly affected by the spread of the coronavirus, and, on the other hand, regions which have an otherwise verifiable high risk of infection (for example, by declaring a state of emergency or imposing quarantine). This applies in particular to employees who belong to a risk group (for example older employees or pregnant women).

12.
May an employee refuse to work with other employees?

With decree of the Federal Minister of Social Affairs, Health, Care and Consumer Protection of 19 March 2020 it has been stipulated that professional activity should preferably take place outside the workplace, if this is possible and employer and employee come to a respective agreement. A general obligation to provide work services in the home office has not been stipulated. Nevertheless, under certain circumstances direct cooperation between employees may be unavoidable. Refusal to co-work together is possible in such cases if the specific person is suspected of being infected, especially if symptoms of infection are evident. An overly cautious approach by the employee and unfounded refusal to (co-)work constitutes a work denial, with all the consequences under labour law up to and including possible dismissal. In general, however, it should again be noted that in the current situation employers are encouraged to limit direct contact between their employees wherever possible in order to minimise the risk of infection and are obliged to offer home office solutions wherever possible.

13.
Under what conditions may an employee be justifiably absent from work, although an illness is not given?

In the event that a business is officially closed down, also the employees not affected by an infection retain the right to continued remuneration for the duration of the official measure. This applies both in the event that a company is closed due to quarantine measures in accordance with the Epidemics Act as well as in the event of prophylactic closure of companies in accordance with the Covid-19-Measures Act.

However, there are other conceivable cases in which healthy employees can justifiably be absent from work without losing their right to continued remuneration. Such a case would be, for example, if the employee is factually unable to enter the business because his or her home or commute way or the business itself is located in an area for which an official quarantine has been imposed.

Further, a justified absence from work with entitlement to continued remuneration for a maximum of one week is given, if the employee is required to care for a close relative suffering from coronavirus in the same household (nursing leave according to § 16 UrlG).

The situation is more difficile, if the employee is unable to return from vacation in time due to special circumstances. If the corresponding measure (emergency, quarantine, restriction of the means of transport), which prevents the timely return, was not foreseeable at the holiday location - i.e. if the employee got into the situation through no fault of his own - a justified reason for absence and thus probably more likely a claim for continued remuneration is given. The case would be different if the employee had consciously and voluntarily gone to an area where appropriate measures could be expected. In this case the employer can refuse to continue to pay remuneration.

In any case, it should be noted that the mere fear of being infected with the coronavirus does not constitute a legitimate reason for an absence from work without further circumstances. Such a refusal to provide the services owed under the employment contract may constitute grounds for a dismissal with immediate effect.

14.
What applies if an employee is unable to fulfil his or her contractual obligations referring to childcare obligations due to a suspension of school or kindergarten? 

The operation of schools and kindergartens has meanwhile been converted to an emergency operation for the care of children whose care cannot be ensured in any other way. Since this means that the care of children in schools or kindergartens is basically guaranteed, a justified reason for absence for the parents of the affected children according to § 8 sec 3 AngG solely based on the restriction of the school operation cannot be assumed in our view.

In case of a justified absence from work due to necessary childcare (in principle if there is no reasonable other possibility of care), the employee retains the right to continued remuneration. It is not fully clear, for how long the right to continued remuneration is given. Law affirms the claim if the employee "is prevented from performing his services for a relatively short time through no fault of his own for other important reasons relating to his person". It is often assumed that the entitlement to continued remuneration lasts one week. This is because in an earlier version of § 1154b ABGB, which regulates continued remuneration for blue collar workers (for salaried employees, § 8 AngG applies, which is basically identical in content in this respect), the duration of the entitlement explicitly was limited to a maximum of one week. However, this view must be countered by the fact that the limitation has now been removed from the law. Likewise, a limitation was deliberately not included in the AngG, with the reasoning that "given the diversity of the circumstances, a time limitation is not recommended from the outset". From our point of view, therefore, in a specific case - if the conditions are met - a period of time slightly exceeding one week could also be covered by the obligation to continue to pay remuneration.

As a further aspect, it should be noted that incapacity to work due to necessary childcare constitutes a justified reason for absence, which is why a dismissal with immediate effect for failure to perform the contractual services or persistent refusal to perform the services cannot be justified. This issue must be viewed separately from the question of the entitlement to continued remuneration. During the duration of a justified incapacity under continued remuneration, a dismissal with immediate effect for failure to perform the contractual services is not permissible. Even after expiring of the continued remuneration entitlement, a justified reason for absence precluding a dismissal with immediate effect could still be given (because the employee is not at fault). In this context, however, it should also be noted that a justified reason for absence only exists if the care of the children by the respective employee is absolutely necessary according to the specific circumstances. If the employee therefore simply stays absent from work although care for the children (possibly even after a change of circumstances at a later point in time) could also be provided by other means (e.g. by relatives, etc.), a dismissal with immediate effect may be justified.

Moreover, parents with childcare obligations now have the newly created possibility to apply for (paid) special leave of up to three weeks according to § 18b AVRAG. This provision is intended to take effect in cases where schools or other childcare facilities are partially or completely closed down due to official measures (although these facilities are offering childcare). However, it only applies to employees whose work performance is not necessary for the maintenance of the business and who are not entitled to time off work for child care purposes. The same rule applies mutatis mutandis if the employee takes over the predominant care of a relative for lack of available care staff or if there is a care obligation for people with disabilities (who are normally accommodated in an assisted facility). However, a legal entitlement to such leave does not exist, the employer's consent is required. Employers who grant such special leave in the period up to Easter are reimbursed for one third of the wage costs.

15.
Can an employee in the current situation withdraw from a holiday agreement?

The consumption of holiday days generally requires an agreement between employer and employee. A unilateral withdrawal from such an agreement is generally only possible in very limited cases.

If it is already clear in advance that there is another justified reason for incapacity during the period of the planned holiday consumption (e.g. a planned operation or a stay at a health resort, etc.), an agreement on the consumption of holidays cannot be validly concluded, as this would contradict the mandatory purpose of recreation.

However, there are no general statutory provisions for the case that a justified reason for incapacity arises after the conclusion of the holiday agreement or even after the start of the holiday. The only clear regulation affects a sickness of longer than three days that interrupts the holidays. In this case, the holidays, which coincide with sickness are not to be deducted from the employee's holiday balance. Other important reasons concerning the employee or his family entitle him to unilaterally withdraw from the holiday agreement only if the consumption of holidays in the specific situation would contradict the holidays’ purpose of recreation. This must be assessed in each individual case.

The fact that a planned holiday trip cannot be taken (because, for example, there are travel restrictions) per se does in our not constitute an objective ground for a justified unilateral withdrawal from a holiday agreement, because the purpose of recreation can in principle also be fulfilled at home. A more differentiated assessment of the issue is required in the current situation. This applies in particular if the company is affected by an official closure. In our view, also in this case, the purpose of recreation is not generally contradicted by the current situation per se. Situation could be assessed differently in special cases, for example if the employee is quarantined for the duration of the planned holiday or has to spend it in a particularly affected (quarantine) area, for which a strict curfew has been imposed, because in this case it is unlikely that a recreational environment can be assumed. This would justify a unilateral withdrawal from the holiday agreement by the employee.

16.
What measures must the employer take to prevent employees from becoming infected?

As already mentioned, employers are generally required to offer home office services if the professional activity does not necessarily have to be carried out at the regular workplace. If home office work is not possible due to special circumstances, the measures to be taken by the employer to prevent infection by employees vary according to the type of business and the type of work carried out.

The necessary appropriate measures will be most extensive in the case of particularly endangered occupational groups with an increased risk of infection. For activities involving direct contact with patients, the employer must provide the necessary personal protective equipment (in particular, for example, disposable gloves, respiratory protection mask, eye/face protection, protective clothing, etc.). In addition, it is advisable to instruct employees accordingly to reduce the risk of infection.

In businesses with customer contact or with contact with persons at risk or in areas with a real risk of infection, the employer is obliged to take appropriate and suitable measures to minimise the risk of infection in order to protect employees. These would include instructions to wash hands several times a day with soap and water or an alcohol-based disinfectant, covering the mouth and nose with a paper handkerchief (not with the hands), in case of coughing or sneezing, avoiding contact with sick people, etc. For employees in food retail, more extensive protective measures are foreseen, such as the installation of Plexiglas panels in the cash desk area.

However, in most cases (in the absence of an increased risk connected to the business/activity), the provision of disinfectants and appropriate hygiene products and instructions will be sufficient as preventive measures (if home office is not possible).

17.
May the employer employees unilaterally "send home" to reduce the risk of spreading the virus?

Except in very limited cases (e.g. pilots or surgeons), an employer can in principle always waive the employee's work performance (garden leave). A concrete reason is not necessary. However, the employee retains the right to remuneration for the duration of the garden leave.

18.
The employment relationship with an employee has been terminated - does the crisis affect related deadlines?

With the 2nd COVID-19 Act, a continuing suspension was enacted with regard to the deadlines for contesting terminations or dismissals and for certain claims arising from the Equal Treatment Act until 30 April 2020. This means that deadlines running on 16 March 2020 or periods beginning after this date will not expire by 30 April 2020.

In order to ensure that other employee claims also do not forfeit or lapse during the crisis, also a continuing suspension for current or beginning limitation and forfeiture periods stipulated by law, collective agreement or individual contract until 30 April 2020 has been enacted.

 

 

Please note: This newsletter merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The newsletter cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the newsletter.



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