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3G, 2G, 1G – What applies to businesses?


So far, a 3G or face mask requirement in Austria is only mandatory for certain industries and companies with customer traffic. But what are companies allowed to impose?

With the Second COVID-19 Measures Ordinance, the legislator essentially adhered to its previous system: In establishments with customer traffic, owners and employees with customer contact must wear a face mask. Except in stores for daily needs, employees with customer contact can be exempted from this obligation by means of a 3G certificate.

What applies in ordinary offices?

Measures in “ordinary” offices without customer contact are not regulated by the Second COVID-19 Measures Ordinance. Nevertheless, both companies and employees have an interest in creating an appropriate level of protection here as well, since the virus does not distinguish between customers and colleagues. Due to their duty of care under labor law, companies are even obliged to take protective measures to a certain extent.

But which ones? A dispute among scholars has recently flared up about this.

In principle, when introducing preventive measures that interfere with the personal sphere of employees, the objectively justified interests of the company have to be weighed against those of the workforce. An employer is neither obligated to exclude every conceivable risk by imposing conditions on his or her employees, nor is he or she allowed to do so. In addition, preference must be given to more lenient means by which comparable goals can be achieved.

Even if the limits of permissible measures cannot be derived conclusively from the Second COVID-19 Measures Ordinance or other legal provisions, it can nevertheless be used as a benchmark for the examination of an objectively justified interest of the company. If a company wants to introduce stricter rules than those that apply, for example to the operation of old people’s homes and nursing homes, it needs good reasons to do so.

However, the weighing of interests will also have to take into account whether employees have the opportunity to evade preventive measures that affect their personal sphere, for example by working from home.

Is it allowed to ask about the vaccination status?

If the preventive measures include tests and vaccinations, it will be necessary to ask about the test result, the vaccination status or whether the person has already been ill. Whether companies are allowed to do this depends once again on a weighing of interests. Companies will regularly be able to cite good reasons for their request for information, such as their duty of care, the (also business) interest in a healthy workforce, the protection of customers and the avoidance of sometimes cost-intensive technical and organizational alternative measures.

However, data protection regulations also have to be observed when collecting this information. It is also relevant that health-related data is particularly sensitive information that may only be processed under strict conditions. The permissibility of processing the vaccination status is currently regarded as impermissible by the data protection authority in an FAQ – unlike the performance (and recording) of PCR tests. This does not seem particularly consistent. In fact, in both cases the considerations to be made from a labor law perspective would also have to be taken into account in this context. The performance of tests, like the processing of information on vaccination status, can be based on Art. 9 (2)(b) GDPR in conjunction with the provisions of labor law on the duty of care.

What does the works committee think?

The extent to which any existing works committee has to be involved in the introduction of such measures is equally controversial in detail and will largely depend on the specific design of the measures. In any case, companies are required to consult the works committee in accordance with Section 92a (1) ArbVG in all matters of safety and health protection in good time and they are required to consult with it.

Dismissal of “refusers”?

What remains to be done if employees refuse to provide 3G evidence?

If a 3G verification system has been lawfully introduced, employees who refuse to start work under these conditions could lose their entitlement to remuneration (§ 1155 ABGB) and could even be dismissed for lack of trust (§ 27 Z 1 AngG) or persistent neglect of duty (§ 82 lit f GewO 1859).

Likewise, companies are free to dismiss the employees concerned. In principle, no reason is required for this, but in the case of an action for annulment, employers would have to prove a justifying motive or an operational necessity for the termination of the employment relationship, depending on the chosen reason for annulment. Where the introduction of preventive measures has been lawful, companies can also expect good chances for the action for annulment.

Our expert Fabian Blumberger from the Employment Law team will be happy to answer any further questions you may have on this topic.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele assumes no liability for the content and correctness of this article.

 

23. September 2021

 
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