The Home Office Act

The COVID-19 pandemic has brought renewed attention to the home office concept. The general provisions of labor and social law are the underlying framework that has been applied by extension and analogy to home office employment, in the absence of more specific provisions. Therefore, the “Home Office Act” does not introduce significantly new content, but does provide for greater legal certainty moving forward. The “Home Office Act” has yet to be finally approved, and could change, but the primary updates as they currently stand are as follows:

1. Employment contracts

In the future, the Austrian law governing employment contracts (AVRAG) will also regulate the terms of home office. Section 18c, which is to be introduced for this purpose, concerns the following points:

  • “Home office” will be defined in the law for the first time, making the common meaning official. “Work in a home office occurs when an employee performs work in the home”. The term “home” also includes a secondary residence or the home of a close relative or partner.
  • Home office agreements must be in writing. As before, employer and employee must agree on home office. With few exceptions, there is no unilateral right or obligation to home office. Whereas before, only a few collective agreements required the agreement to be in writing, the new law will require a written home office agreement in all sectors. In addition, contracts cannot give the employer the right to order home office unilaterally.
  • As before, the employer must provide the “necessary digital work equipment”. This includes the necessary IT hardware (such as a computer or laptop) and the data connection. This can be deviated from by individual or company agreement if the employer provides appropriate and necessary compensation for the costs. Lump-sum compensation is possible. This can be agreed in the form of a “new work remittance” or, under certain circumstances, also in the context of an all-in agreement (the draft law and explanations do not contradict this).
    However, in order to claim the home office remittance as a tax exemption, the amount would have to be set and itemized in the payroll account. The remittance is not considered taxable income, up to the maximum amount of 300 euros per year (see details below).
  • Terminating the home office agreement: Either party can terminate the home office agreement for good cause, with one month’s notice from the last day of the month. Examples of good cause include significant changes in the operational requirements or the employee’s living situation.

2. Regulation by works agreement

The new works agreement in Section 97 (1) (27) of the Austrian Labor Constitution Act (ArbVG) allows the general conditions for working from home to be regulated by works agreement. This includes questions of cost reimbursement, such as the daily flat rate for home office expenses (similar to travel expenses). The home office arrangement itself, however, must be made by agreement on an individual basis.

3. Damage in the home office

The Austrian Employee Liability Act (DHG) has also been adapted for work in the home office. If persons or pets living in the same household as the employee cause damage in the course of work in the home office (e.g. to the digital equipment provided by the employer), the employee is liable. However, the special provisions regulating employee liability relief now also apply to this situation.

4. Occupational accidents in the home office

Amendments to the Austrian General Social Insurance Act (ASVG) ensure that work in the home office is treated the same as work directly at the place of work in terms of accident insurance. This was already the case in the past, but has now been made explicit. The employee’s outings to satisfy vital needs in the vicinity of the home are also protected (in contrast to what was initially envisaged) – as is the satisfaction of the needs themselves. Thus, for example, an accident that occurs while walking from the home to the supermarket during the lunch break is also considered an occupational accident. The same applies to trips to or from childcare facilities, daycare, or school.

5. Changes in tax law
The Austrian Income Tax Act (EStG) is also undergoing adjustments to accommodate work in a home office. However, these adjustments will only apply for three years and will expire again on January 1, 2024.

  • Digital work equipment provided by the employer does not constitute a taxable benefit in kind for the employee.
  • The home office remittance can be issued by the employer as a lump sum to compensate the employee for costs arising from home office activities (for example if the employer does not provide any or all digital work equipment). The home office remittance should be able to be paid out tax-free, for a maximum of three euros per day, for a maximum of 100 days per calendar year (= 300 euros per year). Any amount exceeding the upper limit constitutes a taxable payment.
    The home office remittance paid out does not have to correspond to the home office days actually worked in the respective month and can also be paid out monthly as a lump sum. With regard to the calendar year, however, the employer must ensure that the tax-free amount ultimately corresponds to home office days actually worked. (For example, the employer can pay 30 euros per month of home office remittance. This can be designated as 3 euros per day, for 10 days per month of home office. This would be a total of 120 home office days in the year. As long as the employee works in home office for 120 days, it does not matter in which months these days occurred. It could be 5 days in one month and 15 in another, as long as the total matches up. Furthermore, the remittance can only be paid tax-free for a maximum of 100 days.)
    If the employer sets their home office remittance rate at less than three euros per home office day (e.g. 2.50 euros), the employee can claim the difference for each home office day worked as (additional) income-related expenses (e.g. for 42 home office days remitted at 2.50 each, the employee can claim 0.5 euros x 42 = 21 euros). However, see the workroom restrictions below.
  • Employees are to be able to claim expenses for the ergonomic furnishing of their home office workstation (limited to: desk, swivel chair, lighting), up to 300 euros per year, as additional income-related expenses. This is in addition to the regular income-related expenses provided under law, and in addition to claims to make up the difference for the maximum home office remittance. According to the draft law, however, an employee must work at least 42 days in home office per year to qualify, and it does not apply to tax-designated workrooms. This is already to apply for the assessment year 2020, with the amount of 300 euros for 2020 and 2021 being divided into 150 in each case (excess amounts can be taken into account until 2023).
    As before, if an employee designates space in the home as a workroom for tax purposes, the costs to use and furnish it can be claimed as income-related expenses. In this case, the employee cannot additionally claim the difference between 3 euros per day and the designated home office remittance rate, nor can they additionally claim this new furnishing allowance.

 

Short-time work extended

Short-time work is the temporary reduction of normal working hours and pay. It was introduced last year because of the COVID-19 pandemic, to prevent massive waves of redundancies and safeguard companies’ liquidity. Corona short-time work is now being extended for a further three months until the end of June 2021 (Phase 4). There are only minor changes, as it will essentially continue under the same conditions as Phase 3:

Minimum working time is generally 30%
Working hours may be reduced to as low as 30 percent of normal working hours. There are some exceptions; for example, in industries that have been officially ordered to stay closed (such as the hotel and catering industry), working hours can even be reduced to 0%.

Net replacement rates will remain at 80% to 90%
Irrespective of the hours actually worked each month, the employee will receive the following percentage of the previous net remuneration (“net replacement rate”):

  • 90%, if the gross pay before short-time work was EUR 1,700.00 per month or less
  • 85%, if the gross pay before short-time work was between EUR 1,700.00 and EUR 2,685.00
  • 80%, if the gross pay before short-time work was over EUR 2,685.00

If the employer incurs additional costs as a result (for example if working hours are reduced to 30% and 80% of the remuneration still has to be paid) these will be reimbursed by the AMS in the form of short-time work allowance.

Stronger focus on training and continuing education in Phase 4.
The lost working hours can be used for further training. The AMS will continue to subsidize the costs of further training and will now push them more strongly. Companies that provide training to employees will be reimbursed 60 percent of the training costs.

 

A note on compulsory vaccination

There is no general obligation to vaccinate in Austria. Vaccinations are therefore generally voluntary. However, the question of whether or not employers can require their employees to be vaccinated has not been definitively clarified and must be examined on a case-by-case basis.

In general, however, it can be said that the employer has a duty of care under labor law with regard to its employees. This includes the protection of health and life. In addition, the employer may also have a duty to protect third parties (such as patients or customers). This could certainly lead to an obligation on the part of the employer to support or offer vaccinations.

However, it is questionable whether the employer can also order this unilaterally in the case of a dispute. Ultimately, different interests or fundamental rights come into conflict here: the employer’s interest in earning a living on the one hand, and the employee’s personal rights on the other. As is so often the case in employment law, it is a matter of weighing the interests involved, i.e. whether the interests of the employer or those of the employee prevail. In any case, the activities actually performed by the employee and the conditions associated with them also play a role in the assessment (risk of danger to colleagues, physical contact with third parties, deployment of the employee in places where proof of vaccination is required, etc.). It would also have to be taken into account whether the employer can protect its interests in another way (e.g. through additional protective measures, deployment of the employee elsewhere, etc.). A final decision therefore depends on the individual case and is often difficult. Unsatisfactorily, however, the responsibility ultimately lies with the employer. An order can only be considered lawful if the interests of the employer or the other employees and third parties clearly prevail. This would be assumed if, for example, the employee cannot cite any compelling (health) reasons against the vaccination and the employer could no longer employ the employee at all without the vaccination. This would have to be determined comprehensively in advance and should be documented in a comprehensible manner. If the interests of the employer prevail and the employee refuses the vaccination, this could also result in termination.

 

PDF: Updates for home office and short-time work