The COVID-19 pandemic has given rise to numerous measures within the scope of employment law. On 20 November 2020, the Austrian National Council introduced an entitlement to special care leave.

In simplified terms, the special care leave under Section 18b AVRAG (Act Governing Adjustments to Employment Law) is to ensure care of children, disabled persons, and dependents in need of care if the carer has no other claim to care leave. Previously, the special care leave required an agreement between employee and employer subject to specific prerequisites, but the amendment of 20 November 2020 provides for the employee to be legally entitled to such leave for the period from 1 November 2020 to the end of the 2020/2021 school year without the need for an employer/employee arrangement.

The entitlement to special care leave with continued pay commences when schools and childcare facilities are partly or fully shut down by the government authorities. In addition to the previous care situations, the act covers quarantine for the child imposed by a government authority under the Austrian Epidemics Act. The entitlement to special care leave may be asserted in stints (e.g. per day), but is limited to a total of four weeks up to the end of the school year.

Previously, employers were refunded only a third and, more recently, half of what they paid the employee during the special care leave period, but the new Act stipulates full refunding from the COVID-19 Crisis Fund.

A critical feature of the Act is that the entitlement is granted only when a facility is partly or fully shut down by government authorities. If a school does not close but offers supervision in addition to distance learning, parents are not entitled to special care leave because, under Section 18b AVRAG, employees must take every reasonable step to perform in accordance with their employment contract. Nevertheless, the entitlement applies when a child is forbidden to leave home because s/he is put under quarantine by the authorities. If the child succumbs to COVID-19, the parent is entitled to regular care leave.

Employees can still agree a special care leave with their employer, in which case the latter is similarly refunded the entire wages/salary paid to the employee.

Delay in harmonising the dismissal regulations of white- and blue-collar workers

The same act that regulates special care leave also delays by six months harmonisation of the dismissal rules of wage earners and salaried employees. The provisions adopted some time ago (see P) News issue of March 2018) are now to be applied to notices of termination given after 30 June 2021.

This delay is quite reasonable given the current crisis, especially when considering that aligning the dismissal rules for wage earners to those applicable to salaried employees means seriously meddling with contracts for wage earners: periods of notice are considerably prolonged and termination by the employer is possible only at the end of a quarter. Although new contracts can agree the 15th and the last day of a month for giving notice (as is customary for salaried employees), this is possible in existing contracts only with the wage earner's consent.

If the new rules were to apply as of 1 January 2021, crisis-ridden employers would have to think deeply, especially with the second lockdown in place, whether to grant their employees short-time work or fire them (in line with the old rules) if the company's continued existence is threatened by an excessive wage bill. The delay now decided on provides more time for enterprises to continue to use the COVID-19-short-time work scheme as an important tool to safeguard jobs during the crisis.

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