Changes to treatment of maternity leave in calculating period of service

On 2 July 2019, the Austrian legislator passed a law amending the way maternity leave is taken into account for calculating employees’ periods of service. According to the new law (implemented in Section 15 (h) of the Maternity Protection Act), periods of maternity leave will be treated as years of service in full up for to 24 months for each child. Previously, periods of maternity leave were only considered as periods of service for up to ten months maximum for the first child and were only taken into account for calculating notice periods, paid vacation and continued remuneration in the event of sick leave, provided that this was not regulated to the employee’s advantage in the applicable collective bargaining agreement.

This legal change, which takes effect on 1 August 2019, may affect several entitlements, such as the length of notice periods as well as continued remuneration in the event of sickness, the extent of paid vacation and possible earlier advancement to the next salary level according to the collective bargaining agreement, as these entitlements are all dependent on the employee’s concrete years of service. This legal amendment applies not only to mothers who gave birth but also to foster mothers and adoptive mothers.

Introduction of a ‘Daddy Month’

The Austrian Paternity Leave Act (Väterkarenzgesetz, ‘PLA’) was also amended on 2 July 2019 granting fathers the right to one month’s leave on the birth of their child from 1 September 2019. Colloquially this right is called the ‘Daddy Month’ (Papa Monat).

Prior to this legislative change, only a few occupational groups, such as federal employees, had a right to so-called early fathers’ leave (Väterfrühkarenz). Some Collective Bargaining Agreements (CBAs) also included such a right for employees subject to the terms of the relevant CBA. All other employees could negotiate a 28 to 31-day period of leave with their employer on the birth of their child. However, in contrast to the new legal regulations, these employees had no legal right to a Daddy Month, meaning they were dependent on their employer’s agreement.

During this absence period, employees could claim a ‘family time bonus’ of EUR 22.60 per day from the regional health insurance fund. The family time bonus could only be claimed for periods of family time falling within the first 91 days after birth. During this period, an employee was also covered by health and pension insurance. These financial provisions continue to apply under the new Daddy Month regime.

However, in order to grant all male employees a right to a Daddy Month independent of the employer’s consent, the legislator added a new section 1a to the PLA. This stipulates that notwithstanding the right to parental leave (set out in section 2 et seq. of the PLA), an employee shall, at his request, be granted one month of leave in the period between the birth of his child to the end of the mother’s prohibition on employment after the birth, if he lives in the same household as the child. There are no specific requirements regarding the size of the business in which he works or the employee’s years of service.

Section 1a (2) of the PLA specifies the period within which the father would have the right to this one month period of leave under specific circumstances, such as the situation in which the mother is not legally entitled to maternity leave so that the father would have to return to work no later than eight weeks after the child’s birth.

An employee who wishes to exercise his right to a Daddy Month has to notify his employer no later than three months prior to the calculated date of birth of his child (‘advance notice’, new s1a (3)). In this notification the employee has to provide the probable date the Daddy Month will start. The employee also has to inform the employer without delay of the birth of his child and fix the actual start date for his Daddy Month within one week after the birth.

The one-month leave period starts at the earliest on the day after the child’s birth (s1a (4). This means that if the employee has the right under his employment contract or under the applicable CBA to leave work (with pay) for the birth of his child, this day will not be counted as part of the Daddy Month.

An employee who takes up his right to a Daddy Month can, when the month expires, move directly into taking paternity leave if the mother is not able to take care of the child and provided that the father has notified this properly and early enough according to the statutory regulations (s1a (5) PLA).

Employees exercising their right to a Daddy Month enjoy special protection from termination of employment and summary dismissal. This protection starts from the advance notice or a later agreement (under s1a (3) PLA), but at the earliest four months before the predicted date of the birth. If the advance notice cannot be given because of a premature birth, the protection begins with the notification of the date the Daddy Month actually starts (this has to be done no later than one week after the birth; the notification of the birth itself must be made without undue delay). The special protection ends four weeks after the end of the Daddy Month.