Article:

Update: Special Care Time

23 September 2021

Thomas Neumann, Partner |
Claudia Sonnleitner, Director |

Due to the continuing pandemic situation and the many quarantine cases since school started, the Health Committee has now decided to extend the special care period (Phase 5).

 

The key facts at a glance

Phase 5 of the special care period is to come into force retroactively as of 1.9.2021 and can be used or agreed upon until 31.12.2021 to the extent of up to 3 weeks - instead of the previous 4 weeks. As before, in addition to the legal entitlement to special care time, the possibility of an agreement is also provided for.

 

Special care time without legal entitlement (= agreement model)  

The agreement of the special care time requires that

  • the employee's work is not necessary for the maintenance of the business and
  • the person concerned has neither an entitlement to time off work for care nor an entitlement to special care time

The special care period can therefore be agreed in the period between 1.9.2021 and 31.12.2021, e.g. for the care of a child under 14 years of age, to the extent of up to 3 weeks. This applies if the school or childcare facility offers childcare despite its "closure" (and thereforeno necessary careis available).

 

Special care time with legal entitlement

Employees (including those in systemically important companies) have a legal entitlement to up to 3 weeks of special care time with continued payment in the period between 1.9.2021 and 31.12.2021. This legal entitlement exists in the following cases:

  • Obligation to provide care for children up to 14 years of age at facilities (schools, kindergartens) that are partially or completely closed due to official measures, provided that care is necessary. This means that a legal claim exists only if no other caregiver is available and the school or kindergarten also does not offer care! (Since this is rarely the case, the agreement model will generally be used more often).
  • Obligation to care for children up to 14 years of age in the event of official segregation
  • Obligation to provide care for persons with disabilities in the case of institutions partially or completely closed due to official measures and care at home due to voluntary measures
  • Care for relatives in need of care in the event of caregiver’s absence
  • Care for relatives with disabilities in the event of the loss of personal assistance 

The prerequisite for the claim is that the employee notifies the employer immediately after becoming aware of the closure, segregation or absence of the caregiver or personal assistant and does everything reasonable to ensure that the agreed work performance takes place. The law does not specify what it means to do “everything reasonable”. It will have to be weighed up in each individual case wether a legal claim actually exists.

It is not necessary to exhaust existing other entitlements under labour law in order to be legally entitled to special care time.

 

​Claim for refund

In both models, employers continue to be reimbursed 100% of the remuneration paid, including special payments, capped at the maximum contribution base. Employer's contributions and ancillary wage costs (employer's contribution, surcharge on employer's contribution and municipal tax), etc., however, are not reimbursed. The claim must be filed with the Federal Accounting Agency within six weeks after the end of the special care period.

 

​Conversion to special care time  

As phase 5 of the special care period is to enter into force retroactively as of 1.9.2021, it is envisaged that continued remuneration for leaves of absence and care periods under the general law on the prevention of work in the period from 1.9.2021 until the promulgation will also be eligible for remuneration as special care periods, provided that the above-mentioned requirements are met. These leaves of absence and caregiver leaves will be converted into special caregiver leave as of the date of promulgation of the Act. Converted care leave under the Holiday Act shall not be credited against the employee's entitlement to care leave under section 16 of the Holiday Act; the entitlement shall remain unaffected in such cases.