You can find our overview of measures and news on the “corona situation” here. We have supplemented this on the question of whether the obligation to continue to pay remuneration can be waived for employers affected by the 96th Ordinance of the Federal Minister of Social Affairs, Health, Care and Consumer Protection regarding provisional measures to prevent the spread of COVID-19.
Cancellation of the right to continued payment of remuneration pursuant to Section 1155 ABGB due to force majeure?
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UPDATE: With the Federal Law Gazette I No. 16/2020 the followingpara 3 and para 4 were added to para 2 of § 1155 ABGB:
“(3) Measures based on the COVID-19 Measures Act, Federal Law Gazette No. 12/2020, the lead to the prohibition or restriction of access to establishments are deemed to be circumstances within the meaning of of para. 1. employees whose D Employees who are unable to work due to such measures are obliged to use up vacation and time credits during this period at the employer’s request.
(4) The following shall apply to consumption pursuant to para. 3:
1. vacation entitlements from the current vacation yearonly have to be used up to a maximum of 2 weeks.
2. time credits that are based on the conversion of monetary entitlements regulated by collective legal sources (time off option) are also exempt from the obligation to consume.
3. no more than 8 weeks of vacation and time credits must be used in total.”
The new regulations apply retroactively from March 15, 2020 and expire on December 31, 2020
The employer is therefore obliged to continue to pay remuneration if the Covid-19 Measures Act restricts or prohibits entry to business premises. However, the employee must take into account what he has saved as a result of not performing the service or what he has acquired or intentionally failed to acquire through other use. Furthermore, the employer may demand that the employee use up vacation and time credits in accordance with subsections 3 and 4.
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Pursuant to Section 32 (3) of the Epidemics Act, employees would be entitled to continued remuneration (and the employer would be entitled to compensation from the federal government – see point 1 above).
However, the COVID-19 Measures Act does not regulate an obligation to continue to pay remuneration or a claim for compensation. Pursuant to Section 4 (2) of the COVID-19 Measures Act, the Epidemics Act does not apply to measures under this federal law.
Without the basis of the Epidemics Act, according to the prevailing opinion, there is no entitlement to continued payment of remuneration if work is not performed due to the closure of the company in accordance with the COVID-19 Measures Act, as this is force majeure that also affects the general public. According to the prevailing opinion, there is no entitlement to remuneration if the event affects the business and the general public in a comparable way and is unforeseeable or unavoidable. The event would then fall into the “neutral sphere” and not into the employer’s sphere, which is why there would be no entitlement to continued payment of remuneration pursuant to Section 1155 ABGB.
However, suspending continued remuneration payments now still represents a risk, as the legal situation is not clear and there is the threat of legal proceedings, the outcome of which is not certain. There is a great diversity of opinion regarding the dogmatic justification, the scope of application and the exact delimitation of the neutral sphere. In addition, there are possibilities for “cushioning” damages (e.g. “corona short-time work”). In any case, a legal clarification would be desirable. It remains to be seen whether this will happen in the short term.
There could also be a claim for continued payment of remuneration pursuant to Section 8 (3) AngG or Section 1154b (5) ABGB – at least fora“relatively short period of time“. The 96th Ordinance of the Federal Minister of Social Affairs, Health, Care and Consumer Protection concerning provisional measures to prevent the spread of COVID-19, which is only valid for one week, would constitute such a relatively short period of time. Although according to case law, if the obligation to continue to pay remuneration under Section 1155 ABGB for employees who are ready to work is waived, the right to continued remuneration also exists in accordance with the provisions of Section 8 (3) AngG or Section 1154b (5) ABGB, there are also other views in the doctrine.