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New COVID-19 workplace access rules in Austria

Written by
Schima Mayer Starlinger, a modern, service-oriented law firm in Austria.
From 1 November, employees in Austria must comply with the ‘3G’ rule, meaning they must be vaccinated against COVID-19, have recovered from COVID-19 or have a very recent negative test result to access the workplace.

On 20 October 2021, the Austrian Federal Minister of Health announced that the Government has decided to introduce a general requirement for ‘3G’ proof to enter the workplace. The ‘3Gs’ are ‘geimpft, genesen oder getestet’ (abbreviated as 3G as all three words start with a G in German) meaning vaccinated, recovered or tested. This means that if physical contact with other people (customers or colleagues) cannot be avoided at the place of work in question (including random meetings at public office space, in the canteen or the like), then employees must provide proof of (double) vaccination, recovery or testing (the ‘3G rule’) from 1 November 2021.

Under the ‘3G rule’ an antigen test may basically not be more than 24 hours old and a PCR test must not be more than 72 hours old; however, the period of validity of tests may still change as a result of a new regulation which will be issued within the next few days. In addition, there is a transition period planned until 14 November 2021 during which every employee without ‘3G’ proof may or must continuously wear a FFP2 mask at the workplace. After this date there is basically no alternative to providing 3G proof. Employees who refuse will face the consequences described below.

Exceptions to the obligatory 3G proof in the workplace exist for certain employee groups such as truck drivers or night watchmen with very little contact to other people during their work; there is also an exception for employees working continuously from home offices.

According to the Government, the purpose of introducing the 3G rule in the workplace is to create an incentive and to (further) motivate employees to get vaccinated. However, in contrast to the situation in Italy, it has been agreed by the legislator that testing will remain free of charge for the employees (meaning possible costs will be borne by employers pending further notice).

Both employers and employees are responsible for complying with the 3G rule. However, employers are primarily responsible for monitoring (i.e. they have to spot check compliance by employees). In the event of non-compliance, employees are subject to penalties of up to EUR 500 and employers of up to EUR 3,600 per breach.

Employers may send employees who refuse to comply with the 3G rule home without any entitlement to continued pay. There is no legal obligation to have employees work from home in this situation, because home office work is voluntary for both parties (according to the ‘Home Office Act’ introduced in April 2021).

In addition, employers may terminate employment based on the employee’s refusal to fulfil his or her legal obligations in the workplace (if the employee has no specific health justification for doing so) since employers are not allowed to grant these employees access to the workplace. In the event of a persistent breach of duty due to a continued refusal to provide the 3G proof the employer may even be entitled to summarily dismiss the employee.

Birgit Vogt-Majarek
Partner - Austria
Schima Mayer Starlinger
Lisa Hittinger
Associate - Austria
Schima Mayer Starlinger