Working from Home Legislative Package: What provisions for working from home have now been passed?

13/04/2021

COVID-19 and the resulting lockdowns have led to an enormous increase in the number of people working from home. Following the tax regulations, the National Council has now passed new regulations on working from home under labour law. These new regulations contain innovations and clarifications on the agreement of working from home, on liability, employee and accident insurance protection, as well as on the provision and tax treatment of work equipment for working from home. Most of the new regulations have come into force on 1 April 2021.

You can find the most important key points here:

1. What is “working from home”?

For the first time, the new regulations contain a legal definition of working from home. According to this definition, it is classified as working from home if an employee regularly performs work at home (section 2h (1) Austrian Employment Agreement Law Adaptation Act (AVRAG)). According to the materials, this includes work performed from a residential building, a flat at a secondary residence, or the flat of a close relative or partner. Performing work from other locations, however, such as a public co-working space, does not count as working from home. The reference to regularity means that in the case at hand, work performed from home on an ad hoc basis without a recognisable regular pattern is not to fall under the category of working from home.

2. The employee and employer must agree on working from home 

Working from home must still be contractually agreed on between the employer and employee. This means that, on the one hand, the employee has no legal entitlement to work from home and cannot unilaterally take up working from home. On the other hand, the employer cannot unilaterally order an employee to work from home. The materials also state that the employer is not allowed to reserve the right to unilaterally order an employee to work from home either.

Under the new provisions, the working-from-home-agreement must be concluded in writing for reasons of proof (section 2h (2) AVRAG). However, the absence of the written form requirement does not invalidate the agreement. This agreement does not require a signature. It may also be concluded electronically (company IT tools, mobile phone signature, e-mail).

Another new provision is that the working-from-home-agreement may be terminated by either party for good cause with a one-month notice period (section 2h (4) sentence 1 AVRAG). Good cause might be, for example, significant changes to the operational requirements or the employee's living situation. However, the working-from-home-agreement may also be concluded for a fixed term or provide for a termination option without cause (section 2h (4) sentence 2 AVRAG). Since the notice period for terminating a working-from-home agreement for good cause is already one month, the period of notice for termination without cause will most likely have to be longer. However, this question must still be clarified with legal certainty.

3. A voluntary works agreement is possible

In companies with a works council, it is advisable to regulate the framework conditions of working from home in a works agreement. Previously, such regulations were based, inter alia, on “Use of Company Equipment” (section 97 (1) (6) Austrian Labour Constitution Act (ArbVG)), “Accident Prevention and Health Protection” (section 97 (1) (8) ArbVG) or “Reimbursement of Expenses and Costs” (section 97 (1) (12) ArbVG).

A new specific legal basis has now been created for the conclusion of a voluntary works agreement to “determine the framework conditions for working from home” (section 97 (1) (27) ArbVG). According to the materials, the term “framework conditions” includes in particular the provision of work equipment and its private use, the right to return to the office, as well as regulations on the (flat fee) reimbursement of costs. 

However, working from home must still be agreed on between the employer and the employee even if a working-from-home works agreement has been concluded.

4. Clarification on liability when working from home

Employees working from home have always been covered by the provisions of the Austrian Employee Liability Act (DHG). Now it is expressly stipulated that the Austrian Employee Liability Act also applies to damages caused to the employer by persons living in the same household as the employee in connection with working from home (e.g. to work equipment or work results).

5. Employee protection when working from home

Furthermore, the provisions of the Employee Protection Act (ASchG) regarding workplaces - with the exception of the regulations on VDU work (Sections 67f ASchG) - do not generally apply to working from home. However, if the employer provides the office furniture, they must ensure that it is state of the art and that it meets ergonomic requirements.

It is now expressly stipulated that the Labour Inspectorate has no right to enter the private homes of employees when they are working from home for inspection purposes. However, they are still allowed to enter with the consent of the employees.

6. Accident insurance cover for the home workspace

For the duration of the COVID-19 measures, the 3rd COVID-19 Act has already categorised as occupational all accidents that take place in temporal and causal connection with occupational activity carried out when working from home. In essence, this regulation now continues to apply (section 175 (1a) Austrian General Social Insurance Act (ASVG)). Unlike before, however - in accordance with the new definition of working from home outlined in section 2h (1) AVRAG - it is based on the accident occurring in connection with working “from home”. Accidents in connection with mobile work at other places are not covered by this new regulation and must therefore again be assessed pursuant to the general rule of section 175 (1) ASVG.

7. Provision of work equipment

It has been stipulated that the employer must in principle provide their employees with the digital work equipment (IT hardware and software, necessary data connection, work phone if necessary) required for regular working from home. This obligation does not apply if employees work from home only on a one-off basis without the intention for this to become more regular. If, in deviation from this, the use of employees' own digital work equipment is agreed, the employer must pay the employee a (flat fee) compensation for the reasonable and necessary costs (section 2h (3) AVRAG). The employer's obligation to provide the digital work equipment or to reimburse the costs involved is indispensable (section 16 AVRAG).

In terms of tax law, this was essentially supplemented by the following regulations with effect from 1 January 2021:

• Digital work equipment provided by the employer does not constitute a taxable benefit in kind.
• Payments by employers to compensate for costs arising from work performed from the home are tax-free as a working-from-home flat fee of up to EUR 300 per year (EUR 3 per day for a maximum of 100 days).
• Employees can generally claim expenses for ergonomically suitable furniture (desks, swivel chairs, lighting fixtures) in their own home based on a working-from-home-agreement as income-related expenses in the maximum amount of EUR 300 per year. The prerequisite being that the employee has worked exclusively from home on at least 26 days per year. This already applies to the assessment year 2020, whereby for 2020 and 2021, the amount of EUR 300 will be divided into EUR 150 each. 
• If the maximum amount of the working-from-home flat fee is not fully utilised in benefits from the employer, the employee can generally claim the difference as flat fee income-related expenses.
• The number of days on which employees are working from home exclusively, as well as the amount of the working-from-home flat fee paid, must be recorded in the payroll account.

8. Working time

The provisions of the law on working time and rest periods remain unchanged and therefore continue to apply when working from home (e.g. maximum working hours, breaks). Section 2 (2) Austrian Working Time Act (AZG) in particular continues to state that the time during which an employee is employed to work from home, or outside the company, also counts as working time. If necessary, the agreed working time model for working from home can be adapted by mutual agreement. As always, employees who work predominantly from home can in principle have their working hours recorded in the form of balances (section 26 (3) AZG). However, in view of the European Court of Justice case law on the recording of working time, it is recommended that employees be obliged to record their working time to the minute (including breaks).

9. Data protection

The working-from-home legislative package does not provide any regulations on data protection. In view of the special importance of data protection in connection with working from home, every working-from-home-agreement should nevertheless contain regulations on compliance with data protection requirements while working from home - as has been the case up to now.

Author: Florian Hörmann