"Vaccinated, tested or recovered" also applies in the workplace since November 1st 2021. We have summarized for you the current modalities set out in the 5th Covid 19 Protective Measures Regulation. There are still open questions around the termination of employment and the social security implications in the event of refusal to comply with the 3G rule.
3G rule
Since November 1st 2021, employees, owners and operators may only enter places of work where physical contact with other persons cannot be ruled out if they have a 3G certificate. This is the case if there is direct customer contact at the place of work or contact with other employees cannot be ruled out. Thus, the 3G rule applies to almost all companies.
Exceptions
The 3G rule also applies to entering external workplaces, but not in the home office. Also exempt from the 3G rule at the workplace are those persons who have no more than two physical contacts per day, which take place outdoors and last no longer than 15 minutes each. This could apply, for example, to truck drivers, foresters, etc.
Special regulations
In permanent establishments of the gastronomy sector where increased mixing and interaction of guests is to be expected, such as in particular discotheques, clubs, après-ski bars and dance halls (so-called "night gastronomy"), the 2G rule (vaccinated or recovered) applies in principle to employees - as it does to customers. Employees who do not have a 2G certificate may - in contrast to customers - also enter the permanent establishments with a 2.5G certificate (vaccinated, recovered or PCR-tested), but must wear an FFP2 mask when in direct contact with customers.
The regulation also stipulates that persons working in mobile care and support services may only enter external workplaces if they wear either an mouth-nose protection in addition to the 2G certificate or an FFP2 mask in addition to the 2.5G certificate in closed rooms when coming into contact with customers.
The obligation to wear an FFP2 mask does not apply to pregnant women; they must wear other mouth-nose protection instead.
If a PCR test (2.5G) cannot be presented for reasons of lack of availability or untimely evaluation, the employer may exceptionally admit his employee even if he presents a 3G test (negative antigen test, which must have been taken no more than 24 hours previously).
In addition, the individual federal states provide for different stricter regulations. In Vienna, for example, the 2.5G rule generally applies at the workplace, and in Salzburg and Upper Austria, FFP2 masks are mandatory for customer contact.
No obligation to continue to pay remuneration
Since the place of work (if physical contact with other persons cannot be ruled out) may only be entered if vaccinated, recovered or tested, there is also no obligation for the employer to continue to pay the employee without 3G certificate respectively 2.5G certificate, unless the activity can be carried out in the home office or without contact with other persons.
Options for terminating the employment relationship
Termination in compliance with the statutory, collective bargaining or individual contractual deadlines is generally permissible. As a rule, employees will not be able to enforce an unlawful motive against the termination.
Dismissal without notice may also be permissible for non-compliance with the 3G rule, but must always be assessed on a case-by-case basis.
In order to ensure a swift and efficient termination of the employment relationship in the event of a refusal to comply with the 3G rule, we recommend seeking a mutually agreed termination of the employment relationship.
Termination claims
Depending on the type of termination of the employment relationship, the employee is entitled to various termination benefits, such as holiday compensation, severance pay and pro rata special payments. In the event of unjustified dismissal or termination without notice, the employee is also entitled to compensation for termination during the notional notice period.
Social security
Compulsory insurance ceases at the end of the employment relationship, unless this time does not coincide with the end of the remuneration entitlement, e.g. in the case of receipt of a holiday compensation or a termination payment. In this case, the compulsory insurance ceases with the end of this remuneration entitlement. This therefore also applies to the cessation of continued remuneration if the 3G certificate is not provided. Employees must deregister within seven days of the end of compulsory insurance or the discontinuation of continued remuneration.
However, health insurance coverage continues for six weeks after the end of compulsory insurance (so-called extended protection period), provided that the former employee has fulfilled the waiting period. This is the case if either insurance from employment existed for at least 26 weeks within the last twelve months before the end of compulsory insurance or insurance existed for a period of six weeks immediately before leaving compulsory insurance.
Previous 3G updates:
3G at work from October, 21st, 2021
3G at work from October, 28th, 2021
Update 3G at work from November, 4th, 2021
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