COVID-19: Holiday leave and continued remuneration (sick pay)

Dec 1, 2021 Benn-Ibler Rechtsanwälte

If Austria is chosen as the holiday destination, the official segregation due to illness or the suspicion of infection with COVID-19 constitutes a justified inability to work. According to the rules of the Epidemic Act (Epidemiegesetzes, EpiG), the employer must therefore continue to pay the usual remuneration, unless the illness was caused by gross negligence or intentionally.

In the event that the circumstance of the illness or the suspicion of an infection already exists before the start of the holiday leave, the employee may unilaterally withdraw from the leave agreement. If, on the other hand, the circumstance has arisen after the start of the leave, unilateral withdrawal from the leave agreement by the employee is no longer possible.

If the employee is symptomless, the original leave agreement remains in force and the entitlement to holiday pay continues to exist, since a quarantine does not automatically deny the purpose of relaxation. If the official quarantine lasts beyond the agreed leave, there is no entitlement to continued payment of remuneration under the general law on prevention of work. If the employee has symptoms, the leave is interrupted in any case if the illness lasts longer than 3 days pursuant to Section 5 of the Holiday Act (Urlaubsgesetz). In this case, the employee is entitled to continued payment of remuneration if the illness was not caused by gross negligence or intent.

The situation is different if the holiday is spent abroad. In this case, the listing of the holiday destination is taken into account and whether the employee has remained asymptomatic or is placed under quarantine in the respective country of stay under suspicion of an illness. In doing so, the legislator refers to countries from which a low epidemiological risk emanates (Annex 1 of the COVID-19 Entry Regulation 2021) as well as those listed as virus variant countries (Annex 2 of the COVID-19 Entry Regulation 2021) and those that are listed neither in Annex 1 nor in Annex 2.

In this case, the legislator does not assume gross negligence or willful misconduct and allows the entitlement to continued remuneration to continue. However, in the case of a quarantine in a virus variant state from Annex 2, gross negligence is assumed. UPDATE 26.11.2021: At present "Botswana", "Eswatini", "Lesotho", "Mozambique", "Namibia", "Zimbabwe" and "South Africa" are in Annex 2.

BMA, FAQ Entry Regulation and Holiday Leave (01.11.2021)