• The ‘Home Office Act’ (the ‘Act’) entered into force on April 1, 2021.

The original text in German may be found in the Official Gazette: https://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2021_I_61/BGBLA_2021_I_61.html

• ‘Home Office’ means that the employee works his job at the employee’s (or a close relative’s) private residence (including vacation homes), but excluding co-working spaces, hotel rooms, cafeterias, parks and other common spaces.
  • This distinction is relevant because national employee accident insurance covers work from home, but does not cover work at other places. Therefore, an employee who, for example, has an accident en route to a public space is not covered by the accident insurance. 

• Under the Act, an arrangement allowing or exacting work from home requires the mutual consent of the parties.:
  • Employers may, therefore, not unilaterally instruct their employees to work from  home,
  • Similarly, employees have no unilateral right to work from their home, and
  • under general principles of employment law, the employer must treat employees equitably, and may not discriminate between or among them. This principle  also applies in the context of work from home arrangements.

• The Act suggests, ‘for evidentiary purposes’ that such agreement between the employer and employee should be made in writing:
  • While signing a written agreement (or exchanging electronic messages) is certainly advisable, a verbal agreement shall also be legally binding among the parties.

• Unless otherwise agreed, the arrangement on work from home may be terminated by either the employer or employee for important reasons. Such termination may be made on a rolling basis with effect at the end of any calendar month, by giving one months’ prior notice.
  • For instance, the employee would be entitled to terminate the agreement if he or she moves to a smaller apartment.
  • The employer might terminate the agreement if the performance of the employee’s duties becomes needed at the regular place of work.

• The Act provides some flexibility in terms of the arrangement, explicitly permitting the parties to agree on a fixed term, or on different rules for termination.
  • NB. We would strongly suggest the parties to agree (in writing) either
    • on a fixed term (which may be extended by the parties for consecutive terms, as required), or
    • on more liberal terms for termination (for instance: each party may terminate the agreement with or without reasons by giving four weeks’ prior notice).

• For enterprises that have a works council, the Act allows that a shop agreement on ‘home office’ work may be concluded, however:
  • This does not mean that the works council may force the employer to enter into such shop agreement and
  • If the employer desires to enter into individual agreements with certain employees, allowing them to work from home, the employer may do so even in the absence of a shop agreement.

• Certain statutory limitations of liability apply if persons who live in the employee’s household cause damages to the employer, in the context of the employee’s  ‘home office work’
  • For instance, if the employee’s roommate negligently pours coffee over a laptop that is owned by the employer, the employer may recover only a reasonable percentage of the damages, or, in some cases, no damages at all.

• An employer is required to provide the digital equipment that is needed for the employee’s routine work from home:
  • Including laptop computers, smartphones and other digital devices (and probably also external devices, such as keyboards, monitors and printers, etc.), as well as telecommunication charges.
  • “Digital equipment” obviously does not include desks, chairs, etc., which must be provided by the employee if the employee agrees to work from home; the same applies to heating costs, rent, etc.
  • Instead of providing such digital equipment, the employer may also agree to pay a reasonable compensation (or reimburse the external costs) for such digital equipment that is provided by the employee. The parties may also agree on lump sums to cover these costs.

Employers may reimburse up to EUR 3.– per day of ‘home office ‘ work (for a maximum of 100 days per year), and such payments are exempt from personal income tax. In addition, employees may deduct up to EUR 300.– per year for acquisition of ergonomic chairs and furniture.

The information provided in this summary is neither intended, nor should be construed as legal advice.  For more information or guidance that you may require on the new ‘home office’ regulations, and potential negotiation of related agreements or shop agreement with employees or employee representatives, please contact Bert Ortner or your customary relationship professional at KNOETZL.