The new Homeoffice Act: Same, same but different

In February 2021 – about 1 year after the first “lockdown” and the “home office reality”, that in the meantime has also arrived to Austria – the long-awaited draft of the new Austrian Homeoffice-Act was finally published. The law is expected to enter into effect on April 1, 2021, but what can employers and employees expect from it? The legal framework at a glance:

• What does home office actually mean?
  • Legal definition: Home office is the performance of work by the employee using information technology in his private home, which is considered to be an external workplace.
  • This also includes secondary residences and the home of a close relative or partner.
  • However, performing work from other places, such as working from a café, a park or a “co-working space” does not count as home office.

• Order? Legal claim? Matter of agreement?
  • Matter of agreement by mutual consent between employer and employee.
  • Written agreement, that can be terminated by either party for good cause with a one-month notice period to the end of each calendar month, required.
  • If the company has a works council, the “home office conditions” can also be defined as part of a voluntary works council agreement.
  • ATTENTION: Without a correct written agreement, no home office within the meaning of the law is concluded and therefore no advantage can be taken of the tax benefits.

• Provision of work equipment and cost allocation:
  • In principle, the employer shall provide digital work equipment
  • Possibility to deviate from this by written individual or works council agreement; In that case, the employer is obliged to bear the reasonable and necessary costs for the digital work equipment.
  • ATTENTION: Even if the employee provides the digital work equipment and the employer only bears the costs, the employer remains responsible for the technical and organizational compliance of his systems. Therefore, it is unavoidable to instruct the employees and oblige them to comply with comprehensible and practically implementable data protection rules and requirements, especially if it is agreed that they should provide digital work equipment themselves.
  • Lump-sum reimbursement of costs is possible; In this case, a lump sum amounting to € 3,- per day for a maximum of 100 home office days per year – therefore a maximum of € 300,- per year – can be paid to the employee tax-free.
  • Digital work equipment provided by the employer does not constitute taxable non-monetary remuneration on the employee’s side.
  • Employees are authorized to claim expenses for the ergonomic furnishing of their workplace at home, such as expenses for office chairs, etc., up to € 300 per year as income-related expenses, if they have worked from home for at least 26 days per year.
  • The taxation measures are limited until the end of 2023.

• Employee protection and liability:
  • Applicability of the provisions of the Austrian Employee Protection Act, the Austrian Working Hours Act and the Austrian Rest Period Act, as well as the corresponding ordinances, with the exception of workplace-related regulations.
  • Labor inspectorates are prohibited from entering the private home of the employee.
  • Accidents, that occur in temporal and causal connection with the professional activity while working from home are also considered as work accidents. This also applies to commuting accidents, such as trips to a bank etc.
  • The employer is responsible and therefore liable for any damage caused on the employee’s property in the course of his professional activity. This even applies in case that the employee uses his private equipment during home office.
  • The Austrian Employee Liability Act also applies in cases that the employee causes damage to work equipment provided by the employer while working from home. It even applies in case that damage was caused by the employee’s housemates or pets.

• Data protection:
  • The draft of the new Homeoffice-Act does not (yet) specifically address any issues regarding data protection.
  • However, it is clear, that in terms of both data protection and liability issues, the employer remains responsible for the personal data it processes, as well as all other data and the security of its systems in general.
  • Employees will have to be obliged in writing to comply with comprehensible and practically implementable data protection and IT-security rules and requirements when working from home.
  • ATTENTION: If such rules do not already exist in writing, it will – from a cost/benefit/risk analysis – usually be more efficient for the employer to keep matters in his own hands and simply provide all employees with properly secured digital equipment. This reduces the amount of additional rules to a convenient and workable minimum.

Click here for the draft of the new Homeoffice-Act. Here you can find the 2^nd COVID-19 Taxation Measures Act.

Status: March 2^nd, 2021

For questions, please contact: Árpád Geréd, Alexandra Prodan