In recent years, accelerated by the COVID-19 crisis, the Austrian landscape of work has shifted, with remote working becoming a staple in the modern employment environment. In Austria, this development is reflected in the so-called 2021 “Home Office Act” which formalizes fundamental aspects of labor, tax, and social security law. However, the Home Office Act applies only to work performed from home.
Although the term “home” is to be interpreted broadly, co-working spaces or other public places – for instance, parks, coffee houses, and others such as hotels – are not covered, leading to legal uncertainty. To address several issues, the new Mobile Working Act was passed and will come into force on January 1, 2025, in response to the growing demand for flexibility. The following provides a brief overview of mobile working as well as a few of the legal pitfalls that employers and employees should consider when “working from anywhere.”
Definition of Mobile Work
Contrary to the already existing Home Office Act, the new Mobile Working Act creates a framework for “teleworking.” According to the new act’s legal definition, teleworking is when employees regularly perform work using communication technology either at their home or at another location of their choice outside the employer’s premises – including public spaces such as parks, coffee houses, co-working spaces, hotel rooms, public means of transportation, libraries, open-air swimming pools, resorts, etc. Such flexibility does not only raise questions regarding social security issues in particular but also imposes data security and data protection risks upon the employer. Thus, not pushing the legal limits and excluding certain places to work may be appropriate.
Right to Mobile Working
Neither employees nor employers have the right to mobile working – nor does either side have the right to unilaterally enforce this flexibility. Similar to the previous legal situation, working outside of the employer’s premises must be strictly voluntary, with an agreement between the employer and the employee being imperative and setting out the conditions of mobile working. This agreement does not have to be in writing unless otherwise specified in the applicable collective agreement or employment contract. However, for evidentiary purposes, particularly with regard to data protection and data security, the agreement should appear in writing.
Conditions of Mobile Working
In addition to rules on the provision of equipment such as laptops and mobile phones, the agreement should especially include provisions on the exclusion of certain remote working places, the termination of mobile working, the recording of working hours, duration and extent of mobile working, and the reimbursement of associated costs – however, tax rules currently in force for working from home, according to which up to EUR 300 per year can be paid out free of any taxes and deductions, are to be extended to mobile working.
Social Security Aspects – Pitfall for Employees
The new Mobile Working Act distinguishes between “telework in the narrower sense” and “telework in the broader sense.” This distinction has a significant impact on employees and their accident insurance coverage. For telework in the narrower sense, which includes the main or secondary residence of the employee, the home of close relatives, or co-working spaces rented by the employee, accident insurance coverage applies to the work performance and to the commute to these work locations. All other places are considered as telework in the broader sense and employees are only covered by accident insurance while they are actually working, but not while they are traveling to and from these places. An accident would be categorized as a “leisure accident,” which, among other issues, can have significant financial impacts on the employee.
Data Protection and Security – Pitfall for Employers
Privacy regulations apply at all times for teleworking as well – employers bear the risk of privacy violations and remain liable for their employees even when they “work from anywhere.” Since mobile working can also take place in public places, unless contractually excluded, special attention needs to be paid to data protection and security. Guidelines for the safe handling of data as well as technical and organizational measures that can guarantee data security at all times during teleworking should be implemented – or, if already existing, updated – as teleworkers usually do not have access to lockable rooms, unlike those who work from home.
Summary
Even if the new law meets the demand for flexibility and also reflects the situation as it actually is, there are still some legal pitfalls for employees and employers that should be prevented by an agreement wherever possible.
By Stephan Nitzl, Partner, DLA Piper
This article was originally published in Issue 11.10 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
