New legislation on working from home in Austria: The most important news for employers and employees

Due to the COVID-19 pandemic, the terms “homeworking” and “working from home” (or as it is called in German: “home office”) have been on everyone's lips for more than a year now. Since working from home has gained significant importance, the Austrian Parliament has passed a long-expected “home office legislative package” which entered into force on 1 April 2021. The new regulations bring greater flexibility and reliability in planning as well as tax benefits.

1. Voluntary nature of home office

The possibility of working from home continues to be of voluntary nature. Therefore, the employer neither has a right to unilaterally instruct the employee to perform his work from a home office, nor does the employee have a right to work from a home office. Working from home requires a written agreement between the employer and the employee. By law, the agreement may be terminated by either party with one month’s notice for good cause on significant grounds (e.g. a significant change in the employee’s living situation or operational requirements).

2. Working in a café does not constitute homeworking

Under the new Austrian legislation, “home office” is defined as work performed by an employee in his or her home. The term “home” also includes a home at a secondary registered address or the home of a close relative or life partner. Working days on which the employee is (partly) on a business trip or travels to the employer's office do not count as home office days. In contrast, work performed in cafés, libraries, hotel rooms or in public spaces cannot substantiate a home office day for tax purposes which is relevant for the flat rate expenses (see next section).

3. Non-taxable flat rate expenses for working from home up to
EUR 3 per home office day

Employers can grant a non-taxable flat rate allowance for home office, which is also exempt from social security and non-wage labour costs, in the amount of EUR 3 per home office day, for a maximum of 100 home office days in a calendar year (i.e. max. EUR 300 per calendar year).

If less than the maximum amount of flat rate expenses is claimed, employees will be able to claim the difference as income-related expenses in their annual income tax return (maximum amount minus the flat rate granted by the employer).

This provision applies from 1 January 2021 to 31 December 2023.

4. Income-related expenses for ergonomic office furniture

Previously, it was only possible to deduct expenses for office furniture if a separate home office space was recognised for tax purposes. Under the new rules, it is possible to deduct expenses for ergonomic furniture for an office space in a private home (in particular, tables, swivel chairs, and desk lamps) as income-related expenses up to a maximum amount of EUR 300 per year if at least 26 days are spent working from home (for the definition of home office days see section 2) in the calendar year.

Special retroactive effects may occur so that in total for the year 2020 and 2021 the maximum deductible amount is EUR 300.

The respective maximum amount constitute a total amount to cover the acquisition or production costs of ergonomic furniture. The rules on depreciation do not apply. Excess amounts in the tax years 2020-2022  can be recognised within the maximum amounts until the annual income tax filing 2023 if the minimum number of home office days in these years is fulfilled. At present, the tax year 2023 is the last year in which the tax deductibility of ergonomic furniture will apply.

5. Employer must provide digital work equipment

If employees work in their home office on a regular basis, the employer has to provide them with the necessary digital work equipment. This includes both hardware (e.g. laptop, mobile phone etc.) and the required data connection.

Besides, employer and employee may also agree that the employee has to use her/his own digital work equipment when performing her/his services from a home office. However, if such an agreement is made, the employer has to provide the employee with appropriate compensation.

In addition, some collective bargaining agreements (e.g. for the IT industry etc.) contain more detailed provisions on homeworking which should be checked in detail.

If a works council (with relevant competencies) has been established, the employer and the works council may also conclude a works council agreement on the conditions of working from home.

6. Maximum working hours and minimum rest periods must be respected

When working from home, any generally applicable working time provisions (including maximum working hours and minimum rest periods) as well as individual working time arrangements continue to apply.

Furthermore, it is necessary to keep working time records.In this regard, the Austrian Working Time Act (AZG) provides for some flexibility. If employees perform their work from their home office on a prevailing basis, it is permissible to simply record the net working hours (instead of detailed records on the start and end of working hours and breaks). It must be assessed on a case-to-case basis whether the requirements for such “simplified” working time records are met.

7. Employee protection

The current regulations of the Austrian Employee Protection Act (ASchG) as well as the Austrian Labour Inspection Act (ArbIG), which are relevant for homeworking, remain applicable. Workplace-related occupational health and safety regulations, however, do not apply to homeworking.

Employers are required to inform their employees about the requirements for workplace design and employee protection before the start of homeworking.The employer is only responsible for complying with employee protection provisions concerning the home office if they have provided office furniture or work equipment.

As concerns inspections of the private home, neither the employer nor the Austrian labour inspectorate may enter the employee’s private home without the employee’s consent.

8. No direct liability of household members

Damage to the employer's work equipment (such as IT hardware) which is caused by household members in the home office is attributed to the employee as the "person who caused the damage". Thus, the privileges of the Austrian Employee Liability Act (DHG) – such as a mitigation of liability –apply in such cases too.

9. COVID-19 related occupational accident insurance continues to apply

As concerns statutory insurance for occupational accidents in the home office, the COVID regulation introduced in 2020 (originally on a temporary basis) has been incorporated into permanent law.

Accidents at home (including secondary registered address, home of a close relative or life partner) in connection with the insured employment will continue to be regarded as occupational accidents. Outside of one's own four walls, occupational accident insurance provisions do not apply, with some exceptions though (e.g. when taking children from a home office to school or kindergarten).

10. Permanent establishment (PE) risk due to homeworking?

When providing for homeworking, the risk of establishing a permanent establishment in Austria for a (foreign) employer or vice versa needs to be carefully assessed in a cross border scenario. All details of fact pattern may be relevant, especially as the Austrian tax authorities' interpretation of the ‘power of disposal’ criterion is broad and far reaching.

In a nutshell

• A written home office agreement has to be concluded with the employees.
  
• The number of days in a calendar year spent in the home office need to be recorded in the wage account and stated on the payslip (L 16) even if no non-taxable allowance is granted.
  
• There might be a number of obligations for employers who allow their employees to work from a home office in another country, depending on the extent of home office usage: PE registration, wage tax withholding and social security withholding need to be considered and analysed for the employer in the home country of the employee.

Contact for P&O tax consulting: Evelyn Kappel / Meliha Morankic
Contact for labour law: Ursula Roberts / Lisa-Maria Jobst