WorkLife 2.0: Austria becomes the first EU country to impose COVID-19 vaccines to all its adult population - what does this mean for employers?

The New Year has come with a new proposal for measures against the spread of COVID-19 in Austria. On 16 January the Austrian Government presented revised plans for its proposed COVID-19 vaccine mandate act (the Vaccination Act), which will become Europe’s first act to impose vaccination to all adult population.

In early December, the Austrian Government produced a first draft law, calling for general mandatory COVID-19 vaccinations to be introduced in February 2022, and foreseeing fines of up to EUR 3,600 in cases of noncompliance. While officials commented that consultations with two opposition parties and others showed the need for significant changes to details of the first draft law, key aspects of the plan remain in the final version, which is scheduled to be voted in the Parliament this Thursday.

Details on the COVID-19 vaccine mandate

As of 1 February 2022, Austria will become the first country in Europe to make vaccination against the coronavirus compulsory for the entire adult population (i.e. residents of and above 18 years old). According to the Vaccination Act, the COVID-19 mandate will be in place until 31 January 2024.

In essence, the implementation of the Vaccination Act will comprise the following phases:

• In a first phase, authorities will inform every household of the new rules. Pregnant women, people who for medical reasons cannot be vaccinated and those who have recovered from COVID-19 in the past six months will be exempted.
• In a second phase, from 15 March 2022, authorities (in particular police) will start checking people's vaccination status during routine checks. People who cannot produce proof of vaccination will be asked to provide proof of vaccination, or of a reason to be exempt, within 14 days and will be fined up to EUR 600 if they do not. Fines can be imposed up to 4 times per year during this second phase. However, a fine can be avoided by getting vaccinated (and having proof of vaccination recorded) within two weeks from being fined.
• In a third phase, if authorities judge that the vaccination progress is still insufficient, they will send reminders to unvaccinated people. If that still does not work, unvaccinated individuals will receive a vaccination appointment and will be fined if they do not keep it. Fines could reach EUR 3,600 if people contest the penalty and full proceedings will be opened. However, alternative custodial sentences (Ersatzfreiheitsstrafen) shall not be imposed if the fines cannot be recovered by the respective person.

A commission of medical and legal experts will monitor vaccination progress and report to the Government and Parliament every three months.

Impact of the COVID-19 vaccine mandate on employers?

The new Vaccination Act does not provide for any rules or regulations for the workplace. Employment-related measures against unvaccinated employees, generally, cannot directly be based on infringements under the Vaccination Act. As a result, the Vaccination Act does not have any immediate impact on employers or employees.

Workplaces continue to be subject to the currently applicable "3G rule", i.e. employees must show a certificate of (full) vaccination, negative test or recovery in order to enter the workplace. Both employees and employers may be subject to fines of up to EUR 1,450 in case of non-compliance with the "3G rule".

Employers are free to implement stricter rules in justified cases. On that basis, employers have already been free to require vaccination to enter the workplace (allowing for appropriate exceptions), where the working conditions justified such measure. While the new Vaccination Act does not foresee explicit new rules for the workplace, it can be expected that it will (indirectly) help employers to justify stricter rules that they may establish – such as a vaccination mandate to enter the workplace. The rules established by employers can generally be enforced by regular employment measures, such as warnings or even termination of employment.

The draft law that is expected to be approved on Thursday is a general (not employment-specific) one, aimed at increasing the vaccination rate in Austria. At the same time, it will certainly have an indirect effect on employers, by lowering the threshold for the test to justify stricter rules employers may wish to implement to access the workplace.