The Austrian legislator passed several amendments to a number of laws, in order to implement the EU Work-Life Balance Directive (which entered into force on 1 August 2019; the Directive). This blog post features the main legal changes provided for by the amendments and outlines areas of potential risks for employers to be aware of.
Scope of the Directive
The Directive’s aim is to achieve a better work-life balance for parents and carers by introducing broader access and improved possibilities towards leave and flexible working options. Further, the Directive is designed to achieve a more equal distribution of caring responsibilities between parents by simultaneously increasing women’s employment.
Amendments to Austrian labour law
The implementation of the Directive primarily led to legal changes regarding parental leave, parental part-time arrangements and care leave. Such changes entered into force on 1 November 2023 and while some of them are expected to only have minor consequences for companies, others could constitute, if not properly assessed, various pitfalls for employers in the daily practice.
Duration of parental leave (Karenz)
The implementation of the Directive led to amendments of the Maternity Protection Act (Mutterschutzgesetz – MSchG) and the Paternity Leave Act (Väterkarenzgesetz – VKG). In the previous system parental leave could be taken up to the child’s 2nd birthday. In line with the objectives of the Directive, to encourage a more equal sharing of parental leave between men and women, parental leave for a maximum period of 24 months will now be generally only possible if it is split between both parents, and with each parent taking a minimum period of 2 months, non-transferable from one parent to the other. Otherwise, the maximum amount of parental leave is capped at 22 months. Exceptions only apply for single parents or in case one parent is legally not entitled to go on parental leave (e.g. due to self-employment).
This entitlement under Austrian employment law must be distinguished from the entitlement to receive childcare allowance payments (Kinderbetreuungsgeld) from the social security carrier and the relevant periods applicable in this respect.
Extension of parental part-time (Elternteilzeit)
Austrian employment law generally provides employees with the legal entitlement to parental part-time arrangements, if certain legal requirements are met. The recent amendments due to the implementation of the Directive are of minor relevance to the legal entitlement to parental part-time.
The Austrian legislation also already provides for parental part-time which can be taken upon agreement with the employer, in cases where the legal requirements are not fulfilled or the legal entitlement to parental part-time has already been taken.
The legal changes in relation to this agreed parental part-time are expected to be significant in practice, for several reasons:
Firstly, the timeframe for the employee to request the employer to agree on parental part-time arrangement is now extended. The employee can now claim consent from the employer in court until the child’s 8th birthday, instead of the 4th birthday as it was required before the Directive’s implementation. Any refusal by the employer will need to be justified in writing. Further, as described below, employers will need to be aware that employees will enjoy an extended level of protection against a termination based on illegal grounds (Motivkündigungsschutz) up until the child’s 8th birthday.
Broader entitlement to care leave (Pflegefreistellung)
Employees needed as carers are now entitled to claim one week of care leave, in order to take care of their close relatives (nahe Angehörige), and also for non-relatives living in the same household as them. Previously, the care leave was granted only to carers of close relatives living in the same household. An additional week of care leave can be claimed for children in need of care, again wit the mandatory “same household” requirement to be fulfilled by the employee.
Extension of the scope of the Equal Treatment Act
The Equal Treatment Act (Gleichbehandlungsgesetz – GlBG) now explicitly recognises claims, requests and the assertion of rights with regard to leave and flexible working for parents and carers to be protected under the Equal Treatment Act (and may therefore entitle an employee to damages or the right to contest a termination of employment based on such grounds). For employers, it must therefore be noted that protection is triggered even without any relation to another protective element under the Equal Treatment Act, such as e.g. the gender of the employee.
Written justification requirements for employers
The Austrian legislation implementing the Directive has now introduced two levels of written justification requirements for employers in connection with the refusal of requested leave and part-time arrangements by a parent and carer or the termination of an employment relationship.
While a written justification for a termination of employees aiming to take advantage of care leave only needs to be provided when requested by the respective employee, an obligation to justify the refusal of an agreed parental part-time in writing applies to the employer in any case – without the need for the employee to ask for it. The scope of application of these written justifications is clearly defined by the Austrian legislator, but the amendments to the respective laws do not provide for details on their content. The lack of any guidelines regarding the required content could, in the future, expose employers to claims based on the Equal Treatment Act, if the grounds provided in the written justification violate the principle of equal treatment.
The violation of the written justification requirement by the employer has, however, no impact on the legal validity of a termination of employment and does not trigger any legal consequences or penalties.
Increased level of protection against dismissal
In addition to a strong special protection against termination already applicable to parents and carers under defined circumstances, such protection was also granted to employees who challenge a termination based on an illegal ground. Companies need to be aware of the risks that arise when they terminate employees who are enjoying their rights in relation to parental leave, parental part-time and care leave as those employees will be able to challenge their termination in court, by only making plausible (glaubhaft machen) that their termination was based on an illegal ground (proof is not needed).
Implications for employers - What Now?
Companies are strongly encouraged to review and update their internal HR guidelines and procedures in place for employees requesting parental leave, parental part-time or care leave options to ensure compliance with the current legal framework. Further, particular attention should be paid to the newly introduced justification requirements as well as towards the increased level of protection against termination.
