COVID-19 HR/Employment Law | Austria’s 3G rule for workplaces
Following extensive discussion in recent months about whether employers can require their employees to provide proof of 3G. As of 1 November 2021, the 3G rule now also applies at workplaces. Below you will find answers to the most frequently asked questions in connection with the newly introduced 3G rule at the workplace.
1. For whom and from when does the 3G rule at workplaces apply?
The 3G rule at workplaces will apply as of 1 November 2021 wherever physical contact with other persons cannot be eliminated. This requirement is also fulfilled, for example, if a meeting with other persons cannot be ruled out in common areas or in the scope of events or meetings. The existence of this requirement should be assessed based on an average view in the abstract and not on the specific day on which the work is performed. Employees who submit a 3G certificate are no longer required to wear a mask (except in retirement and nursing homes and in hospitals, where a mouth/nose protection must be worn in addition to the 3G certificate).
Proof is not required if there are no physical contacts at the place of work or if there are no more than two physical contacts per day, which take place outside and do not last longer than 15 minutes in each case.
Until 14 November 2021, a FFP2 mask can be worn instead of providing 3G proof.
2. What counts as 3G proof?
- Second vaccination for a maximum of 360 days from the date of the second vaccination, with at least 14 days between the first and second vaccination;
- Vaccines where only one vaccination is scheduled (Johnson&Johnson) are valid for a total of 270 days from the date of vaccination, starting on the 22nd day after vaccination;
- For previously recovered individuals who have been previously vaccinated once, the vaccination is valid for 360 days from the date of vaccination;
- The third vaccination (or second vaccination in the case of single-use vaccines and convalescents) is valid for 360 days, with at least 120 days between the second and third vaccinations
Proof of recovery
- Proof of neutralizing antibodies not older than 90 days;
- Proof of recovery from an infection survived in the last 180 days;
- Certificate of segregation (“Absonderungsbescheid”) not older than 180 days if issued to a person confirmed to be infected with SARS-CoV-2.
Negative Test Certificate
In all federal provinces except Vienna:
- An antigen rapid test from an authorized body of a negative result or an rapid antigen self-test recorded in an official data processing system of the federal provinces, not older than 24 hours;
- A negative PCR test not older than 72 hours
- In Vienna, the 2.5G rule applies. Only negative results of a PCR test are valid, which are not older than 48 hours ago.
3. Must employees who provide 3G proof wear a mask?
If employees have a 3G certificate, they do not have to wear a mask. This is already provided for in the Corona general collective bargaining agreement, which has been in force since 1 September 2021. Employees and employers can, of course, still agree on wearing a mask internally.
Employees in nursing homes as well as in hospitals are still obliged to wear a mouth-nose protection in addition to the 3G proof.
4. Which control obligations must be fulfilled by employers?
The employer is required to monitor fulfilment of the 3G rule at the workplace “on a random basis”. According to the legal justification for the 3rd COVID-19-MV, however, the control obligation must not be overstretched and must remain reasonable. Depending on the circumstances of the individual case (size and structure of the company, number of employees, spatial and organizational conditions), appropriate notices, random checks, notices, verbal and written instructions are sufficient. Checks at the entrance of the workplace are not included in the 3rd COVID-19-MV.If the employer performs checks that go beyond this scope, a works agreement is required in companies with a works council, and the individual consent of the individual employees is required in companies without a works council.
5. Is the employer also allowed to ask the employee about his vaccination status or only for a 3G certificate?
In our opinion, employers are still entitled asking employees explicitly about their vaccination status due to their duty of care. However, there is still no clear answer to this question.
6. Which data protection aspects have to be considered for monitoring the 3G proof? Can the 3G status be stored and/or electronically processed?
If a 3G proof is required, owners of an establishment are authorized to determine the following personal data in accordance with § 1 para 10 of the 3rd COVID-19-MV: Name, date of birth, validity or period of validity of the proof and barcode or QR code. In addition, owners of an establishment are authorized to determine data for the purpose of establishing identity. According to § 1 para 10 of the 3rd COVID-19-MV, copying or storing the proofs and the personal data contained in the proofs is prohibited, as is the (electronic) processing of the data collected in the course of establishing identity.
Thus, the 3rd COVID-19-MV does not authorize employers to process and/or store the data contained in a 3G proof. Therefore, the creation of a list of the existence and validity period of the 3G proof by the employer is not allowed. In our opinion, however, processing of the data – taking into account data minimization – is permissible if a works agreement is concluded with the works council or the consent of the employees is obtained in companies without a works council.
7. How are employers controlled?
The control of the employer is carried out by the health authority.
8. What are the penalties for breaches of the 3G rule at workplaces?
Employees who enter their place of work without a proof of 3G are subject to administrative penalties of up to 500 euros. Employers who violate their monitoring obligations are subject to administrative penalties of up to 3,600 euros.
9. What legal consequences do employees have to expect if they cannot provide proof of 3G?
Since it is now regulated by law that workplaces may only be entered with a 3G certificate, employers must send their employees home if employees who do not present a 3G certificate. Such an absence is caused and the fault of the employee, which is why he/she is not entitled to remuneration for the time during which no 3G certificate is presented.
However, termination or dismissal for a single violation will not be justified. If employees do not fulfil their obligation to provide proof of 3G despite being informed and being warned by the employer, or if they repeatedly fail to do so, termination (for personal reasons) or – depending on the circumstances of the individual case – dismissal may be justified.
10. Does this also apply to employees who have agreed on a home office with their employer and can also do their work from home?
Of course, this does not apply to employees who have concluded a home office agreement with their employer and can perform their work from home. However, there is still no general entitlement of employees to home office work.
11. How should the reduction in remuneration be implemented in practice?
In connection with the reduction in remuneration, it is still unclear whether the employer is entitled to deregister the employee from social security, whether employees nevertheless acquire vacation entitlements and whether a reduction in remuneration also leads to a reduction in special payments. It remains to be seen whether the legislator will clarify this point or whether these issues will be regulated in a general collective agreement.
12. Must testing be conducted within or outside of working hours?
Due to the implementation of the 3G rule at workplaces, testing is mandatory unless proof of vaccination or a recovery certificate can be presented. Employees must independently ensure that they have valid proof at the place of work. Testing must therefore be done by the employee outside working hours.
13. Who has to pay for the test costs?
If the costs for testing are not covered by the state in the future, employees will have to cover the costs themselves. If the employer insists on a PCR test, even though this is not required in all federal states except Vienna, the additional costs, if any, compared to an antigen test have to be borne by the employer.