New Covid regulations are in effect from 1 August 2022, raising many questions for employers. The biggest changes are that quarantine for SARS-COV-2 infected persons is no longer mandatory according to Austrian law and the reinstatement of the risk group exemption ("Risikogruppenfreistellung").
Since 1 August 2022, infected persons no longer have to isolate. Instead, only certain traffic restrictions ("Verkehrsbeschränkungen") apply to them. Outside the private living area (and thus also at the workplace), they are obliged to wear an FFP2 mask at all times if there is a risk of infection for other persons. For certain facilities, a ban on entering ("Betretungsverbot") is established for everyone except employees of these facilities.
What employment law issues arise for employers? Must or may infected employees come to work or are they automatically on sick leave?
In principle, the general rules for sick leave apply in connection with SARS-COV-2 infections. Therefore, a detected SARS-COV-2 infection does not per se release employees from their work duties. However, depending on the occurrence of symptoms, infected employees may request sick leave (doctors may issue sick notes by phone).
Regardless of whether an employee is on sick leave or not: If individual employees are unable to wear an FFP2 mask continuously for health reasons or if wearing an FFP2 mask makes work impossible and no other suitable protective measures can be implemented, such employees are prohibited from entering the workplace (for continued payment of wages in such cases, see point 3).
What safety measures must employers take to protect other employees and customers in the event of a confirmed SARS-COV-2 infection of employees?
Infected employees are obliged to wear FFP2 masks at all times in the workplace if contact with other persons cannot be excluded. According to the Explanatory Notes, the mask may not be removed even for eating and drinking. If physical contact with other persons can be excluded, certain alternative protective measures can be taken (e.g. regular airing of rooms).
Employers must ensure their employees comply with the applicable protective measures. Depending on the specific circumstances, they may also be obliged to take further protective measures or to allow non-infected employees who belong to a risk group to render their services from home. If this is not possible, employees may in individual cases be entitled to paid leave from work.
Moreover, employers are obliged to inform both customers and employees of an infection of present employees in order to enable them to assess the risk of infection.
Are employers entitled to compensation for the remuneration paid to employees during their sick leave caused by a SARS-COV-2 infection?
The former claim for compensation for the remuneration paid to employees during their sick leave due to a SARS-COV-2 infection has been widely abolished, as quarantine is no longer mandatory in such cases. If employees are on sick leave due to a SARS-COV-2 infection, the employer is obliged to continue paying their remuneration, without entitlement to compensation.
However, in exceptional cases, a claim for compensation for the remuneration paid to employees during their sick leave due to SARS-COV-2 may arise if the employee is not allowed to enter the workplace. For instance, this is the case if wearing an FFP2 mask all the time is not possible for medical reasons and no other suitable organisational or spatial protective measures can be implemented.
What measures can employers adopt if infected employees refuse to comply with the mandatory protective measures?
In principle, employers can (and must) instruct infected employees to wear FFP2 masks at all times while present in the workplace or to leave the workplace if they refuse to do so. Alternatively, infected employees may be offered the opportunity to render their services from home; however, there is no unilateral authority for the employer to impose work from home.
In individual cases, repeated refusal to follow instructions may also justify a dismissal.
By Stefan Kuhteubl, Partner, Schoenherr