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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Hong Kong

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The Hong Kong government has not implemented any specific laws or guidelines related to remote-working arrangements. However, the privacy commissioner for personal data has issued various guidelines concerning protecting personal data under work-from-home arrangements. It should be noted that these guidelines are not legally binding but rather recommendations from the privacy commissioner. They apply to organisations and employees, but there is no specific mention of the guidelines extending to gig workers or independent contractors.

The guidelines state that the same standard of security should be applied when employees are working from home as when they are working from the office. They list out various considerations for organisations, including:

  1. setting out clear policies on the handling of data during work-from-home arrangements;
  2. taking all reasonable steps to ensure the security of data, particularly when information and communications technology is used to facilitate this; and
  3. providing sufficient training and support to employees under work-from-home arrangements to ensure data security.
Last updated on 11/10/2021

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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Hong Kong

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As a result of the covid-19 pandemic, many companies in Hong Kong encouraged their staff to work remotely. This meant taking documents home from the office and using video conferencing, cloud computing and intranet platforms, where those software solutions were available, and also using personal devices to work more. As a result, confidentiality and security of data became more at risk.

Due to space constraints in Hong Kong, it is not practicable to expect employees to work or conduct confidential discussions in an isolated area away from others. Often employees are sharing workspace with family members and may also share a laptop or PC with them. If working from home is not an option for an employee, he or she may be working from cafes or public spaces. As a result, non-employees may overhear confidential discussions or see confidential documents. If these conversations and documents contain personal data (of employees, customers, clients, suppliers or other third parties), then the potential leakage of this data may constitute a breach of the Personal Data (Privacy) Ordinance (PDPO). There may also be contractual confidentiality breaches.

A typical home network is unlikely to have the same stringent security protections in place that an office network does. Attackers have seen an opportunity to steal user credentials from personal devices, which are now being used for work and likely do not have the same security protections as corporate devices. Using unsecured networks and devices may lead to data leakage or theft, which would be in breach of the PDPO.

If personal data is being processed by new third parties as a result of having to implement remote-working arrangements, an employer will need to notify its employees of this. This can be done by issuing employees with a revised or new Personal Information Collection Statement (PICS) setting out the change. The PDPO specifies that a data user, when collecting personal data directly from a data subject, must take all reasonably practicable steps to ensure that the data subject is informed of the intended use of their data and who will be handling such data. A PICS is therefore used to comply with these notification requirements and is a statement regarding a data user’s privacy policies and practices in relation to the personal data it handles. 

Last updated on 11/10/2021

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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Hong Kong

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There are no specific statutory limits on employers monitoring employees’ activity in remote-working arrangements, as long as the employer complies with the PDPO. However, employers mustn't collect employees’ personal data (ie, browser history) without having notified them in advance of the personal data that they intend to collect and the purpose for which it is being collected, under the PDPO. This can be done in a PICS, where monitoring of an employee’s use of telephone, email, internet and video for performance-related and other reasons is likely to be included.

The privacy commissioner has released guidance about monitoring and personal data privacy at work. This includes guidelines on the monitoring of telephone, email, internet and video. These monitoring practices should serve a legitimate purpose that relates to the function and activity of the employer and should be necessary for that purpose. If an employer does not believe it can adhere to these guidelines, it may prefer to find less invasive ways of ensuring that employees are adhering to their job duties when working from home (eg, regular check-ins or asking them to complete timesheets).

Last updated on 11/10/2021

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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Hong Kong

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Employers in Hong Kong are not statutorily required to provide work equipment for employees working remotely or reimburse them for costs incurred in buying such equipment themselves or for the cost of working from home (eg, mobile phone, internet, utility costs and computer usage expenses).

Generally speaking, an employment contract will contain a term stating that all legitimate business expenses reasonably incurred in the proper performance of the employee’s job duties will be reimbursed by the employer to the employee. As such, an employee could potentially make a contractual claim against his or her employer for expenses incurred in buying work equipment for remote working and for the other costs of working from home, unless there is a policy or written instruction from the employer stating otherwise.

If the employer does not reimburse the employee for these costs, the employee may argue that the employer is in breach of contract, or that the costs incurred if not reimbursed would be an offset against earned wages, and therefore result in an unlawful deduction from wages. This, in turn, could lead to the employee bringing a potential claim for constructive dismissal or unreasonable variation of employment terms.

Therefore, it would be helpful for employers to have a clear policy on reimbursement of expenses related to remote working either as a standalone policy or as part of a wider remote-working policy, including what employees can and cannot claim, whether there are any caps on expenditure, how to make such claims and what types of documentary proof of expenditure are required.  

Last updated on 11/10/2021

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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Hong Kong

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Salaries tax

In Hong Kong, employees are responsible for paying tax on their employment income; this is called salaries tax. Whether and how much salaries tax is payable by employees temporarily working abroad will depend on whether their employment is considered “Hong Kong employment” or “non-Hong Kong employment”. The Inland Revenue Department will consider various factors when determining if employment is Hong Kong or non-Hong Kong, such as where the employment contract is negotiated, concluded and enforceable; where the central management and control of the employer is; and where the employee’s remuneration is paid.

Employees with Hong Kong employment will generally remain subject to salaries tax in Hong Kong if they temporarily work outside of Hong Kong for part of the tax year (beginning of April to end of March the following year). If the employee works outside of Hong Kong for the full tax year, then they will not be subject to salaries tax in Hong Kong. Employees with non-Hong Kong employment who work outside of Hong Kong temporarily will generally not be subject to salaries tax in Hong Kong.

Social security

Hong Kong does not have a comprehensive social security system similar to other countries, but most employers and employees in the city are required to make contributions to a mandatory provident fund (MPF), which is a regulated privately managed retirement fund.

Where mandatory contributions are being made to the MPF, the fact that an employee is working temporarily abroad will not affect the contributing obligations of the employer or the employee.

Employment law

Employers would need to be cautious as to whether local employment laws (in the overseas country) would apply to the employee when working remotely from that country. These may include minimum wage restrictions, paid annual holidays, maternity or paternity entitlements and rights on termination.

Employers in Hong Kong also have a statutory and common law duty in respect of the health and safety of their employees. This includes ensuring that the employee has a safe workplace. If an employee suffers a personal injury by accident that “arises out of and in the course of employment”, the employer may be liable to compensate the employee even if the injury was sustained while the employee was working from abroad.

Last updated on 11/10/2021

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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Hong Kong

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Unless the employee has a clear policy or a contractual provision that permits it to reduce salaries or benefits in this situation, it is unlikely that the employer could lawfully make such reductions without the employee’s consent. Where an employee has elected to work remotely and there is such a policy or contractual provision in place, the reduction in salary or benefits is unlikely to be challenged by the employee. Where an employee has been forced to work remotely by their employer (due to covid-19 or otherwise), such a reduction may be challenged as the remote working has not occurred at the employee’s request.

Generally, if an employer changes an employee’s salary or benefits unilaterally, an employee could bring potential claims against it for unlawful deduction from wages, unreasonable variation of employment terms or constructive dismissal.

Last updated on 11/10/2021

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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Hong Kong

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As of to date, employers in Hong Kong do not have a statutory right to require their employees to receive covid-19 vaccination. That being said, the government has already made covid-19 vaccination compulsory for civil servants, healthcare workers, care home staff and school teachers. The government has also been urging employers in certain private sectors to mandate covid-19 vaccination for employees.

Further, in order to boost Hong Kong’s vaccination rate, the government has, in February 2022:-

  1. introduced the vaccine pass rules which require all visitors, including employees (except for certain exempted groups), to be covid-19 vaccinated when entering certain premises, such as shopping malls, restaurants, department stores, supermarkets, and hair salons;
     
  2. published the Employment (Amendment) Bill 2022 (the “Amendment”) which provides (amongst other things) that it is a valid reason to dismiss an employee who refuses to comply with a “legitimate vaccination request”. A “legitimate vaccination request” requires a non-exempted employee to show that he/she has received at least one dose of vaccination (the required number of doses of vaccine progressively increases overtime). Although the Amendment has not yet come into force as of to date, it is expected that this will take place soon.

In light of the abovementioned government actions, we have seen an increasing number of employers, especially those in the food & beverage, hospitality, aviation and healthcare sectors, implementing a mandatory vaccination policy for its employees to meet their operational needs.

It is also noted that the Amendment in relation to valid reason for dismissal will have a sunset clause. This means it will be repealed when the pandemic is no longer a matter of public health concern.

Under common law, employees are expected to comply with any “lawful and reasonable” direction from their employer. It is lawful to request that an employee be vaccinated, but there is a question over whether it would be considered reasonable. An employer’s health and safety obligations are often cited as to why such a direction would be reasonable. The reasonableness would largely depend on the particular sector the employee works in, the employee’s role and nature of duties, his or her contact with people, whether the role can be carried out remotely without issue, and whether the vaccine pass rules apply to the employee’s workplace. Certain sectors, such as food & beverage, hospitality, aviation and healthcare, may be able to justify that it is reasonable to mandate employees be vaccinated due to the high-risk nature of the jobs and the workplace they are in.

If an employee refuses to receive a covid-19 vaccination, an employer cannot force the employee to be vaccinated. It could decide to do one of several things:

  • (when the Amendment comes into force) require the employee to comply with a “legitimate vaccination request” and a failure to do so could be a valid reason for dismissal;
  • request that the employee undergo regular covid-19 testing instead;
  • agree with the employee that they can temporarily work from home (if that is possible given the employee’s role): and
  • agree to a change of role for the employee (if their current role requires being in the workplace).

This is not an exhaustive list.

Last updated on 06/04/2022

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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Hong Kong

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If an employer were to implement this condition, there may be employment law and data privacy issues.

The potential data privacy issues are set out in response to question 11 below.

From an employment law perspective, unless an employee’s workplace is subject to vaccine pass rules (see our response to Question 8 above for further details), the current position is that making entry to the workplace conditional on having a covid-19 vaccination may constitute a breach of contract or an unreasonable variation of employment terms, unless it was consented to by the employee or it amounts to a lawful and reasonable direction. If an employee is dismissed as a result of not being able to enter the workplace (eg, they were unable to carry out their full job duties without being in the workplace and were therefore made redundant), this individual could challenge the reasonableness of their dismissal if they have two or more years’ service. (However, as mentioned in our response to Question 8 above, after the Amendment comes into force, an employer could make entry to the workplace conditional on an employee having received a covid-19 vaccination by making a “legitimate vaccination request”, and the employee’s failure to comply with the request could be a valid reason for dismissal.)

Employees protected by Hong Kong’s anti-discrimination ordinances may also be able to bring claims against their employers if the condition is disadvantageous to them as a group and the individual is also personally affected. For example, if an individual who is pregnant or breastfeeding decides not to receive a covid-19 vaccination because of recommendations from their doctor regarding their baby’s health, and they are refused entry to the workplace, they may claim indirect sex discrimination on the basis that while the condition applies to the entire workforce, it is more disadvantageous to those who are pregnant or breastfeeding as they are less likely to be vaccinated and, in turn, it has disadvantaged her personally. Regarding this individual’s losses, this may be limited to injury to feelings but could also lead to financial loss if this individual missed out on opportunities as a result of not being able to enter the workplace or was dismissed.

Notwithstanding the above, the government has recently required that all civil servants must receive two covid-19 vaccine doses by 1 April 2022, or they will be banned from government premises (unless they hold a medical exemption). Further, with the introduction of the vaccine pass rules (please refer to our response to Question 8 above to further details), employees who are unvaccinated would in any event be banned from entering their workplace if their workplace is subject to vaccine pass rules.

Last updated on 06/04/2022

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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Hong Kong

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Yes. The government has made covid-19 vaccination compulsory for civil servants, healthcare workers, care home staff and school teachers; in particular, all civil servants must receive two covid-19 vaccine doses by 1 April 2022, or they will be banned from government premises (unless they hold a medical exemption).

Further, with the introduction of the vaccine pass rules (please refer to our response to Question 8 above to further details), employees who are unvaccinated would be banned from entering their workplace if their workplace is subject to vaccine pass rules. (e.g. shopping malls, restaurants, department stores, supermarkets, and hair salons).

Last updated on 06/04/2022

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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Hong Kong

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Employers must ensure that they provide their employees with a Personal Information Collection Statement (PICS) before collecting their personal data in respect of medical and vaccination information, which sets out how they will collect, use and transfer the employees’ medical and vaccination data. It may be that an employer has already issued employees with PICS that cover the provision of medical and vaccination information for the specific purposes now required, but the wording should be carefully checked before relying on it, to ensure it definitely covers the current circumstances.

Under the PDPO, employees should be notified of the purpose for which their personal data is being collected and the personal data should only be used for that purpose. If, once the personal data has been collected, the employer then wants to use it for a different purpose, it will be necessary to seek the employees’ consent to it being used for that alternative purpose. An example may be that an employer notifies employees that it is seeking their medical and vaccination information for monitoring purposes only and later decides that it wants to use that information to devise a return to office strategy and determine whether to dismiss certain employees. In this situation, the employer would need to notify its employees of these alternative purposes and ask each of them to provide their consent to their personal data being used for these new purposes. If the employees refused to provide consent, then the employer would not lawfully be able to use the personal data for the new purposes and, if it did, it would be in breach of the PDPO.

The PDPO also requires employers to obtain no more personal data than is necessary for the purposes it is collected. For example, with a vaccination record, it may not be necessary for the employer’s purposes to know what type of vaccination an employee had and, as such, this information should not be collected.

Employees must also be notified of whether it is mandatory or voluntary to provide their personal data and, if it is mandatory, the consequences if they decline to provide it. For example, with vaccination information, an employer may inform employees that it is mandatory to confirm whether or not they have been vaccinated and, if they decline to do so, they will be treated as unvaccinated for internal policy and strategy purposes.

Employers are required to inform employees of the classes of persons to whom the data may be transferred. For example, if an employer wanted to use vaccination data to provide those who had been vaccinated with some form of benefit, the employer may need to provide the employees’ vaccination data to the third party who provides that benefit. Transferring personal data outside of Hong Kong is not currently prohibited or restricted, but employees should be notified if the data is to be transferred to a third party outside of Hong Kong (eg, a subsidiary or holding company of their employer).

Employees need to be informed of their right to request access to their personal data and employers must take precautions to protect personal data from leakage or unauthorised access, and only retain the data for a reasonable period that is necessary for its purpose.

Last updated on 11/10/2021

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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Hong Kong

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There are no specific health and safety rules that have been introduced for remote workers by the government. However, employers must abide by their statutory and common law duty to ensure the health and safety at work of their employees, as far as is reasonably practicable. This obligation would likely extend to remote working (although this has not yet been tested in the courts). Employers would therefore be required to ensure that their employees’ home-working environment is commensurate with the standards that they are required to uphold in the workplace, otherwise they may find themselves liable for breach of their statutory or common law duties.

While there has been no specific legislation on health and safety considerations for remote workers, some employers in Hong Kong have introduced policies and guidelines for remote workers, including related to workspace configuration, conducting desk assessments, recommended stretches and breaks and also a focus on mental health.

Last updated on 11/10/2021

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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Hong Kong

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The laws on the mental and physical wellbeing of employees have not changed in Hong Kong as a result of the pandemic. Employers are still required to ensure that their employees’ health and safety is upheld; however, this may be more challenging when employees are working remotely, especially where employers do not have an effective infrastructure already set up to deal with remote working and staying in touch with each other.

The pandemic has caused a wide range of mental health issues from anxiety to loneliness, not being able to turn off to not being able to self-motivate, dealing with loss and grief, and having to balance working life, homeschooling and other caring responsibilities. Employers have developed an increased awareness of these issues being experienced by their staff and some have introduced specific mental health policies and measures to try to assist their staff during this period. If these mental health issues are not dealt with properly, they can lead to grievances, sickness absence, disability discrimination claims or constructive dismissal claims.

Employers have also had to grapple with how to treat time off for covid-19 and long covid, and some have adapted their existing sick leave policies accordingly.

In addition, employers have needed to consider whether their employee compensation insurance covers remote working, whether their private health insurance covers all types of covid-19 treatment and whether their travel insurance covers their employees travelling abroad for business and contracting covid-19.

Last updated on 11/10/2021

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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Hong Kong

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The Occupational Safety and Health Ordinance (OSHO) covers all employees in their workplace, which may include an employee working from home, especially if their contract specifies this as their workplace. If an employee’s place of work is specified as “mobile” or “in the field”, then this may also be deemed the employee’s workplace under OSHO. As such, we do not believe there would be any differentiation between the obligations an employer has towards a mobile worker versus a home worker under OSHO. The same is true under common law.  Where there may be a difference is in relation to employee compensation insurance, as the insurer may potentially be open to insuring a home worker but not a mobile worker, but this would be subject to negotiation with the particular insurance provider.

Last updated on 11/10/2021

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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Hong Kong

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Hong Kong has not introduced any specific employment or health and safety rules relating to remote working.

An employer’s duty to take reasonable care of its employees’ health and safety at work may extend to safeguarding its employees’ mental health and wellbeing, but there are no specific, separate obligations on employers concerning protecting employees’ mental health.

There are, however, obligations under the Disability Discrimination Ordinance not to discriminate against employees on the basis of their mental health condition (if such condition constitutes a disability), so employers should take care not directly or indirectly to treat employees with mental health conditions detrimentally, or harass or victimise them.

Although not legally required, employers should consider regularly checking in on employees who are working from home to ensure they are coping ok and not feeling isolated or overwhelmed.

Last updated on 11/10/2021

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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Hong Kong

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During the peak of the pandemic in Hong Kong (mid-2020), as many businesses were forced to suspend services for covid-19-related reasons, the government introduced the Employment Support Scheme (ESS). The ESS gave all eligible employers in the city the right to claim a subsidy of 50% of their employees’ wages for up to six months (with a cap of 9,000 Hong Kong dollars per employee per month). Employers who received subsidies under the ESS were prevented from making redundancies during the subsidy period, or else the subsidies would be clawed back.

In March 2022, the government announced that a new round of ESS will be launched in response to the fifth wave of covid outbreak in Hong Kong. Based on the government’s announcement, unlike the ESS in 2020, certain industries which are deemed to be less affected by the pandemic (such as supermarket and pharmacy chains, banks and financial institutions), would be excluded from participating in this round of ESS. The full details of this new around of ESS are yet to be announced, though it is expected that it will be open for application in April 2022.

The government has often reiterated that employers should try to avoid making redundancies during this difficult period, and that employers may wish to consider alternative options such as unpaid leave or reduced working hours instead. That said, the government has not legislated to prevent redundancies or changes to employees’ terms and conditions during covid-19, and so employers have had relative freedom to make such changes, subject to the normal rules regarding needing employee consent to make contractual changes (other than immaterial ones where the contract contains a right to make changes).

Last updated on 06/04/2022

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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Hong Kong

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There have not been any particular actions brought forward by trade unions or other worker associations regarding protecting the entitlements and rights of remote workers in Hong Kong.

Trade union presence in Hong Kong is not as prevalent as it is in other countries. While we have seen some trade unions engaged on issues relating to the reduction of pay and benefits and redundancies, we have not seen this with remote working.

Last updated on 11/10/2021

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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Hong Kong

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As the local pandemic situation in Hong Kong has been relatively stable, remote-working arrangements have been dealt with in more of an ad hoc fashion with many employers not putting in place formal remote-working policies.

Generally, there is no statutory obligation to consult with trade unions in Hong Kong on implementing remote-working arrangements. Some companies may, however, have policies in place that require them to consult with trade unions before making changes to employees’ terms and conditions of employment. Collective bargaining is not recognised in Hong Kong, so even if consultation with trade unions does take place, any change to employees’ employment contracts has to be individually consented to by each employee.

Last updated on 11/10/2021