New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Austria

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First, it should be noted that in the Austrian legal system a distinction must be made between remote working and working in a home office. While remote working regularly includes any work without a fixed workplace (eg, also in cafés and public premises) the work in a home office is limited to an employee's place of residence or at least that of one's partner. Only working in a home office is substantially regulated by law, while remote working can still be agreed largely without formalities and is "only" subject to general labour law norms.

The most important government measure in this sector is the Home Office Act, which came into force on 1 April 2021 in response to the covid-19 crisis and the corresponding working conditions. The Home Office Act adapts various existing laws and tightens the legal framework for home office employment. The relevant provisions include a legal definition of a home office, its direct tax implications, and fundamental legal requirements for working in a home office, such as the requirement of a written agreement between employer and employee. Therefore, a home office can neither be imposed unilaterally nor is there a legal entitlement at a statutory level for any worker to work from home.

The relevant legal provisions on home offices cover all genuine employment relationships that are based on a private law contract. Those are essentially characterised by the personal and economic dependence of the worker. It can be deduced from this definition that independent contractors are not covered by those provisions. They are essentially free to determine working hours and places and only owe their contractual partner the production of a result. Therefore, they can regularly decide independently where they choose to work.

From an Austrian point of view, "gig workers" are also ordinary employment relationships under social security law, which is why the above also applies to them.

Last updated on 21/09/2021

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India

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The Indian government has not introduced any labour laws or guidelines around remote working.

However, India is in the process of codifying several of its national-level labour laws into four codes, and one of the labour codes in this regard is the Industrial Relations Code, 2020 (the provisions of which are yet to be made effective). The Industrial Relations Code, 2020 contains provisions relating to Standing Orders that mandate employers in certain establishments to adopt certain work rules for their employees. The draft model Standing Orders proposed by the federal government, as was published by the Ministry of Labour and Employment in December 2020[1] (but yet to be finalised and notified) contains a reference to “work-from-home” arrangements for employers in the services sector.

Additionally, the law on maternity benefits allows a female employee (who has returned from maternity, and whose nature of work is such that it may be performed remotely) to request permission from her employer to work remotely on mutually accepted terms and conditions.

Companies that are registered with the Department of Telecommunications (as Other Service Providers), Special Economic Zones and Software Technology Parks of India, are required to comply with certain conditions for their employees to work from home.


[1] https://labour.gov.in/sites/default/files/224080_compressed.pdf

Last updated on 08/07/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Austria

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The potential data protection risks associated with remote working are largely equivalent to those associated with working in a regular workplace, but are arguably even more prevalent.

A significant potential risk factor is the transfer of personal data if it is no longer securely stored on a company's servers. In addition, employers thereby transfer responsibility for the safekeeping and use of sensitive data to the worker. In doing so, employers have a significantly reduced ability to exert any influence. Nevertheless, companies are still generally regarded as being responsible for data protection within the meaning of the General Data Protection Regulation (GDPR), which creates a certain amount of friction.

It is also questionable whether a so-called privacy impact assessment must be carried out when working in a home office.

In principle, such an assessment must be conducted if data processing – especially when using new technologies – is likely to result in a high risk to the rights and freedoms of natural persons due to the nature, scope, circumstances, and purposes of the processing.

At present, it cannot be assumed that the threshold for the use of new technologies has already been exceeded in the context of remote working. In individual cases, however, it could amount to an "organisational solution" within the meaning of the GDPR, which also triggers the obligation of a privacy impact assessment by the data controller.

Insecure data connections that might not be constantly checked and maintained should also be considered. Another potential risk arises from it being easier for third parties to obtain access to sensitive data, whether it be persons in the same household or others at public places of work.

From a legal perspective, compliance with data security can also be adequately ensured for remote work, considering the GDPR and the corresponding national legal basis (Austrian Data Protection Act).

In home-office agreements, however, it is advisable to make further reference to data protection aspects. Here, companies should refer to the secure and data protection-compliant transport of sensitive hardware. Additionally, companies should take technical and organisational measures to ensure data security (eg, use of VPN, two-factor authentication with mobile phones, encryption of USB sticks, provision of a LAN network, requirements for secure storage of access data).

Last updated on 21/09/2021

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India

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An individual’s sensitive personal data or information (SPDI), which includes information on passwords; financial information such as a bank account, credit card or debit card or other payment instrument details; physical, physiological and mental health conditions; sexual orientation; medical records and history; or biometric information or other details related to such information provided to a body corporate for the provision of services or such information received for processing under a lawful contract or otherwise and its storage are protected under Indian data privacy rules. There are certain mandatory obligations for collectors of such SPDI in electronic forms, including obtaining the consent of the data provider, formulating, publishing, and complying with a privacy policy for treatment of such data and adopting certain standards of security practices. However, these obligations are not specific to remote-working arrangements; they govern the terms of the data being collected by the employer.

With employees working remotely, employers are facing a challenge with protecting the security of client data and other confidential information, which may be duplicated or disclosed to third parties by employees working remotely on unsecured personal devices.

Last updated on 08/07/2022

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Austria

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Relevant here are first the restrictions on the employer's control of working time. Both the Working Time Act and the Rest Periods Act also apply to remote work and to work in a home office. However, section 26 paragraph 3 of the Working Time Act provides that in the case of work that is predominantly carried out in the home, only records of the duration (not the specific beginning and end) of the working time are to be kept. If the working hours are fixed, only deviations must be recorded.

The practical possibilities of monitoring work performance are manifold due to the IT tools that are now available (eg, log files, webcam). In contrast, in Austrian labour law, the employer's ability to control is subject to important restrictions. Control measures that affect human dignity require either the consent of the works council or – if such a council does not exist – the consent of the respective worker. Both attendance and performance or productivity controls can be relevant here. According to case law, the question of whether human dignity is affected must be assessed on a case-by-case basis. In addition to the employer's interest in monitoring, the way the monitoring is carried out is also decisive, so that the possibility of constant electronic monitoring (for example, by controlling keystrokes or screen duplication) certainly affects human dignity[1].

However, it is of course lawful to check the availability of employees during working hours.


[1] Huger in Huger (Hrsg), Home Office und mobiles Arbeiten [2021] Rechtliche Rahmenbedingungen.

Last updated on 21/09/2021

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India

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Employers in India largely rely on their policies regarding the monitoring of worker activity, in absence of codified laws. As a result of the covid-19 pandemic and resultant lockdown, employers were not fully prepared to shift to remote working and hence faced challenges vis-à-vis ethics and the legalities of monitoring employee activity. Incidentally, there was an employee protest in one case when the employer’s client required the employees providing services remotely to keep their cameras on.

While there is no legal requirement of time tracking specifically in the context of remote working in India, employers are generally required to track the working hours of employees (largely from an overtime perspective) and to comply with certain recordkeeping requirements under applicable labour laws. In this context, employers should bear in mind that their records do not falsely show an employee working beyond the stipulated daily and weekly working hours prescribed under applicable labour laws, which may trigger overtime requirements thereunder.

The law on the protection of women from sexual harassment applies to employees while they are working from home, given the expanded definition of “workplace” that includes “a dwelling place or a house”. Employers need to be careful to ensure that there is no abuse of the online means of communication, such as video calls, in the process of monitoring their employees that may lead to workplace sexual harassment-related claims. 

Last updated on 08/07/2022

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Austria

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The basic obligation of employers to reimburse employees for expenses incurred on behalf of employers already results from general private law for all forms of remote working (more precisely: section 1014 of the General Civil Code).

However, the reimbursement of costs is more precisely defined for work in a home office. Employers are, in principle, obliged by law to provide home workers with the necessary digital work equipment. If an arrangement has been made by works agreement or individual agreement whereby the employee provides digital work equipment, which includes the necessary data connection, the employer shall pay the reasonable and necessary reimbursement of costs. To this extent, the employer is obliged by law to pay compensation.

This expense is to be borne by the employer, who may, however, pay a so-called home office allowance tax-free to the employee up to a limit of €300 and thereby, or by paying an appropriate lower amount, compensate the employee for expenses, including those resulting from increased internet or electricity consumption.

Last updated on 21/09/2021

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India

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There is no legal obligation for employers to provide work equipment or reimburse the costs of remote working. However, if an employer would like an employee to work remotely, it is generally expected that the employee will be provided with the necessary tools and equipment required for remote working, including a computer and a phone, which an employee is expected to use exclusively while dealing with work-related data. This is a common practice followed by employers keeping in mind data privacy and confidentiality related concerns while employees are working remotely. There is, however, no clarity surrounding reimbursement of costs for internet or electricity, and employers adopt different arrangements, based on their remote-working policies and practices.

Last updated on 08/07/2022

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Austria

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Labour Law:

The essential issue regarding labour law is the question of which labour law should apply. Often, employers will want to apply a uniform labour law to all employees. However, this becomes impossible if in cross-border remote-working arrangements the labour law of the state of residence provides certain overriding mandatory rules and minimum standards (eg, in wage dumping and working time). Additionally, it may prove difficult for employers to keep track of the ever-changing legal landscape in various jurisdictions. Allowing for cross-border remote-working arrangements will oftentimes lead either to higher staffing requirements in the in-house legal department or increased recourse to local external partners. Both are associated with costs. There is also the question of work permits, depending on the applicable local law. 

Social Security Law:
 

While temporary covid-related work at home in other EU or EEA countries (and Switzerland) should not lead to any change in social security responsibilities, the corresponding provision in Austria was limited until 31 December 2021 and restricted to pandemic-related work at home. According to the information provided by the Austrian social insurance institution, covid-related work at home should not have any social insurance and tax law implications. Apart from an exceptional situation such as this, for workers who are working in more than one member state, working or earning more than 25% of the working time or remuneration in the country of residence leads to a change of the applicable social security regulations there. This is naturally associated with (sometimes) considerable administrative effort. The corresponding declarations must be made, and the payment of contributions must be ensured.

From the employer’s point of view, especially regarding accident insurance protection, it is important to note that the exact location of the remote workplace must be specified individually.

While insurance coverage in the home office is expressly clarified, the details concerning remote work in general are still controversial. These uncertainties are exacerbated in cross-border situations.

Tax Law:

If remote work is carried out across borders, this can have (potentially negative) effects on taxation. First, it must be considered that a domestic employer may employ workers who carry out their work both domestically and, for example, in a home office abroad. This may result in the establishment of a foreign permanent establishment through that home office. This would lead to a limited tax liability for the domestic employer abroad. A limited tax liability may also be accompanied by the obligation to deduct income tax via PAYE (pay as you earn). Since national legislation must be considered, this can lead to a considerable administrative effort.

In general, employees should not stay abroad for more than 183 days per year as otherwise they will be taxed in the country in which they are active. Finally, it must be considered whether there are taxation agreements between the countries and how these are structured.

Last updated on 31/01/2022

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India

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Some high-level considerations to be kept in mind by employers in a cross-border remote-working arrangement can be summarised as follows:

Labour law considerations

While a permanent remote-working model from India is not legally tenable for a foreign employer, it must be borne in mind that India has labour laws at national and state levels. Accordingly, and depending on the employee's primary place of work in a remote working arrangement, the employer must consider the state labour laws and compliance.

Please also note that in cases where an employee is working remotely from India, the employee may be able to claim protection under Indian health and safety laws. We are yet to come across such cases in India involving cross-border employees.

Where an employee employed in India is moving to a foreign country to work remotely, the Indian employer will need to comply with applicable Indian labour laws concerning benefits, consultation, flexible work issues, worker health and safety obligations, and taxes.

The Employees’ Compensation Act, 1923 (EC Act), which applies to commercial establishments in some jurisdictions and certain categories of employees otherwise, and provides for compensation payable by employers to employees related to any “injury caused to an employee by accident arising out of and in the course of his employment”, has extraterritorial application outside India for employees of Indian companies travelling or working overseas for their employer. However, application of the EC Act to remote working scenarios is currently unclear.

Social Security

Where an employee in India moves out of India to work remotely, subject to the terms of any social security agreement between the concerned foreign country and India, such employee may be treated as an “international worker” under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (EPF Act). Similarly, where foreign nationals are employed with an Indian entity of a foreign employer, subject to any social security agreement between the concerned foreign country and India, such foreign national may be treated as an “international worker” under the EPF Act and be subject to compliance requirements thereto.

Tax considerations

The presence of an employee in India employed with a foreign entity may lead to tax or permanent establishment issues for the concerned foreign entity in India, depending upon the nature of activities carried on by such employee in India. The provisions of any double taxation avoidance agreement between India and the concerned foreign country will also need to be considered in this respect. Similarly, for employees in India moving outside India to work remotely, the employee’s tax residency status will depend on the applicable tax laws in India, the concerned foreign country and other applicable considerations such as foreign exchange control regulations based on which taxes will need to be withheld or paid. Individuals may also be subject to taxation depending on their length of stay in any country.

Last updated on 08/07/2022

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Austria

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Employers cannot unilaterally reduce employees' salaries because of remote work. A salary reduction is only possible either by mutual agreement or through a dismissal, with the option of re-employment on altered conditions.

Regarding benefits, we believe that a distinction must be made according to whether they were granted with working on office premises in mind and whether the employer has reserved a right to revoke them. In the latter case, employers may reduce or revoke benefits unilaterally. In addition, it can also be argued that, for example, meal vouchers for the company canteen are no longer issued and are not reimbursed. Such and other “social benefits by the company” can be limited to use at the company’s workplace.

Last updated on 21/09/2021

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India

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“Wages including the period and mode of payment”, “contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force”, “compensatory and other allowances”, “hours of work and rest intervals”, “leave with wages and holidays” and “withdrawal of any customary concession or privilege or change in usage” are some of the protected conditions of service under the Indian labour law. For changing any such service conditions to the detriment of the workers, the employer is required to provide 21 days’ prior notice and inform the labour authorities in a prescribed format.

Additionally, the payment of salary and benefits is largely a matter of contract between the parties, beyond the minimum requirements under the labour laws in terms of wages, bonus, social security, insurance, overtime, etc. Hence, the terms of the individual employment contract and policies also need to be considered while reducing wages or removing benefits. These are generally sensitive matters and could also lead to HR issues for the employer, especially if the employees are unionised.

Last updated on 08/07/2022

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Austria

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Vaccination is not compulsory at present (but see below and question 10). Employers will not be able to force workers to have a covid-19 vaccination, as long as no corresponding legal basis has been established. However, the legal situation of workers who refuse vaccination has not yet been fully clarified.

Employers might struggle to comply with their duty of care if workers remain unvaccinated. Co-workers, but also customers, would be exposed to a greater risk of infection if workers are unwilling to get vaccinated. Moreover, the set-up of additional protective measures might lead to a considerable increase in costs the employer is unwilling to bear.

Therefore, the employer has two options:                                                                                                                                                                                                                                                                                                                      A transfer of the worker to another workplace with a reduced risk of infection (no contact with customers or co-workers) should be considered first. If the employment contract does not provide for a transfer of workers and the worker refuses to change his or her workplace, the employer could give notice of dismissal with the option of reemployment on altered conditions. Here, for example, a change in working conditions or a change in the place of work would constitute an adequate rearrangement.

However, a dismissal or a dismissal with the option of reemployment on altered terms may not be conditional on vaccination. Yet, if there is no such opportunity for employment, the worker might be legally dismissed as he or she has nowhere to work. The question here too is if the worker can provide other evidence to meet the requirement of a reduced incidence of infection. Besides vaccination, a negative test result or a confirmation of a Covid-19 recovery will serve this purpose.

On 19 November 2021, the government announced that Austria will be the first European country to introduce compulsory vaccination against covid for all people from February 2022. The draft law is in the legislative process. After the National Assembly (one part of the legislative body) gave its approval, the draft will now also be voted on in the Federal Council (the second body). Exceptions to the general obligation to vaccinate will only be possible for medical reasons. For example, religious reasons are not considered according to the draft law. Furthermore, compliance with the vaccination order is "only" ensured by imposing administrative fines for non-compliance.

By creating a corresponding legal basis for a general obligation to vaccinate, it is expected that the employer will be allowed to take action against employees who refuse vaccination. It is conceivable, for example, that the employment relationship could be terminated because the employee cannot be employed due to lack of vaccination and is therefore not ready for work. Nevertheless, the current draft does not bring any legal changes to the workplace for the time being. Here, the 3-G rule continues to apply.

Last updated on 31/01/2022

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India

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Vaccination in India is voluntary. Employers cannot legally mandate employees to receive a covid-19 vaccination. 

Employers may, however, refuse the entry of employees to the workplace if they are not vaccinated. However, it may not be possible to cut wages or terminate employment on the basis that an employee is not vaccinated.

Please refer to our article published in the International Employment Lawyer on this topic, including recent case law in India. The Indian Supreme Court in the judgment Jacob Puliyel v. Union of India has considered state restrictions against unvaccinated individuals in access to public spaces, resources, and services unconstitutional, although there is no clarification on whether this will impact private individuals imposing entry restrictions upon unvaccinated individuals into private premises. Please also refer to our article published in the International Employment Lawyer on this topic

Last updated on 08/07/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Austria

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In exercising his domiciliary rights, it is up to the employer or entrepreneur to decide which persons he allows to access company premises. Therefore, the employer must also be allowed to demand appropriate proof of vaccination. This action is also justified if vaccination reduces the risk of infection with covid-19 for other workers.

However, a separate question to ask is whether an unvaccinated employee is entitled to remuneration during a lockout. This assessment is to be made on a case-by-case basis. Since there is no legal basis for compulsory vaccination at present, a balance of interests must be made here. Many aspects play a role when balancing the interests of the employer and individual workers. For example, if there is a home-office agreement with a white-collar worker, the employer may link the return to work to changed conditions and therefore to proof of a covid-19 vaccination. In the case of blue-collar workers (or white-collar workers without a home-office agreement), however, a lockout with retention of salary will not be justifiable. The legislature currently provides three options to prove that there is no infection. A negative test result, proof of vaccination and a confirmation of a covid-19 recovery (3-G proof) are suitable ways of providing evidence here. Employers are not entitled to unilaterally impose stricter conditions without objective justification and will need to accept all three options. Furthermore, one must also consider the individual situation of the worker. Some workers are simply unable to have vaccinations for health reasons. Therefore, if employers opened their business only to vaccinated workers, they might also have to pay workers who have been locked out, without receiving any work performance.

This could change with the introduction of compulsory vaccination. First, the general vaccination obligation will drastically shift a possible balance of interests. Once compulsory vaccination comes into force, continued payment of wages for unvaccinated employees no longer seems necessary in most cases. However, there will be exceptions, especially for persons who cannot be vaccinated for medical reasons. In addition, workers will continue to be able to invoke the 3-G rule for the time being – until a corresponding change is made. If this regulation is not adapted, it will continue to be possible to rely on the alternatives to vaccination (testing, recovery).

Last updated on 31/01/2022

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India

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A private employer has a right to restrict the entry of any employee to its private office premises if the employee is not vaccinated. In such a case, the employee may continue to work remotely.

Last updated on 08/07/2022

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Austria

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In principle, there is already the legal possibility to impose vaccinations for certain professions in the health sector. However, this option has not been exercised yet. There is no legal basis for compulsory vaccination in most sectors.

Workers may choose from three options (3-G rule) when they want to enter their employer’s premises. As of now, there is no regulation stipulating an entry requirement to the workplace for vaccinated workers. However, employers may only tighten access restrictions in substantiated cases. Individuals who are not employees may be subject to stricter conditions (proof of vaccination) as a result of the employer’s right of domicile.

Last updated on 31/01/2022

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India

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The Chief Commissioner of the Bangalore municipal authority (BBMP) issued a circular on 26 August 2021 stating that employers of commercial establishments, industries, hotels and restaurants, and other offices within BBMP jurisdiction must ensure their employees are vaccinated[1] and also provide regular testing. The Karnataka state government (Bangalore) also issued direction for labour authorities to ensure employees in industries or factories including IT employees are vaccinated with two doses of covid-19 vaccine, with a direction for labour authorities to check the vaccination status of employees of such establishments.[2] Currently, the legal validity of such government circulars in view of the latest Supreme Court judgment in the matter Jacob Puliyel v. Union of India is debatable and there is a low likelihood of such circulars being strictly enforced by government authorities.


[1] https://drive.google.com/file/d/19_1A7CtE2Qdy7Fbeihrsh9PHpEAHy8RE/view?usp=sharing

[2] https://ksdma.karnataka.gov.in/storage/pdf-files/CAB%20and%20Vaccination%20Industries%20English%20order%20RD%20158%20TNR%202020%20(3)%20dated%2005-01-2022.pdf

Last updated on 08/07/2022

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Austria

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It is the opinion of the data protection authority that a targeted question about an employee’s vaccination status is not covered by the legal framework, as two other equivalent methods are currently provided to prove a low epidemiological risk at the workplace (3-G rule).

In practice, however, it will be possible for employers to leave it up to employees to disclose their vaccination status of their own accord.

Employers are currently only allowed to randomly check whether workers have been vaccinated, have recovered from COVID-19 or have been tested. The underlying regulation does not create a legal basis for maintaining data and prohibits the unilateral retention of personal data. Best practice has been to leave it up to employees to actively disclose their status to employers.

There are no specific record-keeping requirements. Due to the law, personal data may not be maintained and employees must actively disclose their status and consent to its retention. Personal data may only be stored for as long as it is necessary. Furthermore, the processing of personal data must always be limited to the necessary extent (data minimisation). The general obligations of the GDPR must also be complied with.

Last updated on 31/01/2022

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India

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An employee’s medical information and history (in electronic form) is treated as SPDI under Indian privacy law, for which employers need to comply with the applicable data privacy requirements, such as procuring consent from the concerned individuals, adopting, publishing, and complying with a privacy policy for collection, and processing or storage of such SPDI. However, this may not apply where the physical copy of proof of vaccination is only subject to visual scrutiny.

Additionally, where employers are required to disclose such data to any third parties (eg, manpower service providers may be required to disclose employee SPDI concerning covid-19 symptoms to clients to whom their employees are assigned), they should ensure that their privacy policy covers such disclosure of SPDI of employees to third parties and it receives specific consent from the concerned employees providing their SPDI to third parties. The employer in this situation should also contractually ensure that the third party receiving such SPDI complies with the applicable data privacy norms.

Last updated on 08/07/2022

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Austria

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Any regulations concerning the general protection of workers apply to teleworkers as well. Only workplace-related regulations do not apply here. Thus, an employer's duty of care does not end at the worker’s front door when the worker performs their work from home. In Austria, several large companies produce videos for their workers showing the ideal design of a teleworking workplace. They use these videos to support their workers to set up their teleworking workplace properly. In some cases, workers are even offered the opportunity to film their workplace and send the video to the employer. Experts then assess whether the workplace meets occupational health and safety requirements.

Last updated on 21/09/2021

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India

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India has labour laws concerning compensation payable by the employer for any personal injury caused to an employee “arising out of and in the course of” employment. While these laws have been extended in cases where an employee was travelling on official duties, we are yet to come across a specific precedent related to remote working in India. Additionally, remote working has led to the emergence of several unprecedented mental health-related issues among employees working from home, which is something employers are grappling with. Employers should also ascertain whether its insurance coverage applies to employees working remotely.

Last updated on 08/07/2022

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Austria

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Employers' duty of care requires supervision of employees in terms of occupational health and safety and work ergonomics, even during teleworking. This was hardly dealt with before covid.

Last updated on 21/09/2021

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India

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Since the dawn of the pandemic, with employees working remotely from different locations, employers are grappling with the applicability of health and safety-related laws such as state-specific shops and establishments acts (S&E Acts), the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA), establishment-specific legal mandates such as the requirement of creche provision under the Maternity Benefit Act, 1961, and laws related to employee compensation for injuries and the like concerning remote workers. However, there is a lack of legal precedent in India providing for clarity on the application of the age-old laws to the current remote working scenario and this area of jurisprudence is at its nascent stage.

Having said that, certain laws such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 have a wide definition of workplace to cover an employee’s dwelling place or house. In light of new remote-working arrangements, it has become essential for employers to update their policies to address such legal considerations adequately, from an employer’s duty of care perspective.

Last updated on 08/07/2022

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Austria

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No. Regarding employers’ obligations on health and safety measures, the same rules apply to mobile workers and workers based primarily at home.

Last updated on 21/09/2021

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India

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No, currently applicable Indian laws do not distinguish between home-based workers and mobile workers. There is a concept of ‘out workers’ under the CLRA in terms of the application of provisions thereof, which does not specifically distinguish between remote workers and home-based workers.

Last updated on 08/07/2022

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Austria

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An employer's duty of care also includes looking after the mental health and well-being of employees who work from home. However, their duties are of course limited only to those aspects that arise from the work performance itself (hence no private factors). However, neither employers nor representatives of the labour inspectorate may enter a worker’s home. Therefore, employers are unable to examine working conditions during teleworking. Nevertheless, employers are still expected to ask their workers about their state of health and offer support. As mentioned above, some employers offer their employees creative solutions. However, the prerequisite is always that employees voluntarily cooperate with the measures if his or her home is affected.

Last updated on 21/09/2021

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India

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­The Mental Healthcare Act, 2017 (MHA) outlines the rights of persons with mental illness, without specifying any entity against which such rights may be enforced. As a result, such rights of a person with mental illness under the MHA may extend against employers as well.

Some of the rights applicable to persons with mental illness under the MHA inter alia include the right to be treated equally at a par with persons with physical illness in all provisions of healthcare besides other rights such as right to dignity, privacy, to be part of society, and to be protected from emotional and sexual abuse. To that extent, employers should take into account such requirements in their policies, addressing inter alia non-discrimination of employees with mental illnesses in terms of the provision of healthcare-related benefits at par with persons with disabilities, protecting the confidentiality of any information related to an employee’s mental illness, and publication of any information relating to an employee’s mental illness on media with the consent of such employee.

Last updated on 08/07/2022

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Austria

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Regarding changes in the organisational structure itself, large employers, in particular, are relying heavily on home offices and are already planning for a time after the pandemic. Desk-sharing models are increasing0 being considered and actively implemented. This is accompanied by a (partial) return of leased property. In the internal organisation, there is a noticeable departure from rigid hierarchies and a shift towards increased network thinking, in which decision-making processes take place jointly using digital work equipment.

The government and legislature have been very careful to minimise layoffs as much as possible and at least to counteract pandemic-related redundancies. This was achieved, on the one hand, through direct support of the economy in the form of aid packages (compensation for loss of sales, subsidies for monthly fixed costs, etc) and, on the other hand, through the widespread use of short-time work, which was largely financed through state aid. The short-time work subsidy is accompanied by a retention obligation placed on employers, so that there have been relatively few redundancies during the pandemic so far, as the companies have accepted this aid well.

 
Last updated on 21/09/2021

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India

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There were certain central and state government restrictions on employment termination in the form of government advisories during the first and second phases of covid-19-induced lockdown in India. Orders were passed by state and central governments on mandatory payment of wages to all employees during the period of such lockdown. As a result, several employers were left with no choice but to restructure their workforces through redundancies. Owing to the same, based on certain government orders as aforesaid (the constitutional validity of which are debatable and currently sub judice), employee unions in some Indian states such as Maharashtra (Mumbai and Pune) and Karnataka (Bangalore) have been actively taking up the cause of employees who have been retrenched or whose working conditions such as wages have been adversely impacted by employers during the pandemic. However, courts have upheld the employer’s rights in certain cases to deduct wages or pay reduced compensation to employees during lockdown in case of any default attributable to the employee (such as an employee’s inability to attend the workplace in an operating establishment, owing to any voluntary action) or with employee consent.

Last updated on 08/07/2022

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Austria

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Austria benefits from its system of "social partnership", which is characterised by cooperation between employers' and employees' interest groups and with the government. Due to long negotiations between the social partners in the run-up to the Home Office Act, workers’ rights were safeguarded before the amendment was implemented.

Last updated on 21/09/2021

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India

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Certain state governments, during the first and second waves of lockdown in India, issued orders mandating employers to pay full salaries or to provide holidays to employees who were unable to work owing to the closure of their workplaces. In Pune, the active trade union for employees in the information technology sector made complaints before the labour authorities based on such orders.

Labour authorities in Pune also took steps against employers through the issuance of notices and other adverse orders to block detrimental actions taken against employees such as retrenchment, reduction in wages, and change in leave policies. However, we have noticed a downward trend in such incidents since the second phase of lockdown in early 2021. During the second phase of lockdown, employers have also been more proactive in providing medical support and other assistance to employees and their families, as opposed to taking cost-optimisation-driven employee adverse actions, as was noted during the first phase of lockdown in India. Currently employers are gearing up to welcome employees back to offices in a full-fledged manner or in hybrid working arrangements.

Last updated on 08/07/2022

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Austria

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Especially regarding home office work, the Austrian legislature has clarified that such work requires an agreement between employer and employee.  At the same time, however, the legal possibility was established to determine framework conditions under which home working can take place within a company through a works agreement. At this level, employee representatives (the works council) can therefore help to shape the implementation of remote working. However, the conclusion of such a works agreement is voluntary and cannot be enforced. Nevertheless, employers should inform the works council before introducing home working, as the works council has a general right to information, which in our opinion also includes the introduction of remote working.

In addition, various collective agreements for entire industries also lay down framework conditions for teleworking, although their implementation also requires an agreement between employer and employee.

Employee protection in the context of mobile working is already guaranteed by the fact that relevant worker protection laws also apply to remote work in their essential provisions. In practice, works agreements regularly provide for employers to undertake a workplace evaluation to ensure the health and safety of its employees.

Last updated on 21/09/2021

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India

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Unless there are unionised employees in the workplace or collective bargaining agreements necessitating an employer to negotiate the terms and conditions of employment to maintain industrial harmony, employers are not required to consult or otherwise involve a trade union when introducing a remote-working arrangement to their workplace. In such cases, as long as employee consent is procured for implementing such change in the employee’s service conditions, unless there is contractual right available to the employer to automatically do so, it should be possible for the employer to implement such change. Any influence of the union in this respect will have to be assessed based on the scale of operation of the employer, nature of operation of the employer, percentage of unionised employees in the establishment etc.

Last updated on 08/07/2022