Employment Law in Austria: Part II

Maternity Leave Protection

In accordance with the Maternity Protection Act of 1979 (“Maternity Protection Act”), pregnant women are prohibited from working during the last eight (8) weeks immediately prior to the presumed date of delivery and the eight (8) week period must be calculated based upon a medical certificate provided by the employee’s treating physician. If the delivery occurs before or after the date set forth in medical certificate, the time period would be shortened or lengthened accordingly. Employees are also prohibited from working for a period of eight (8) weeks following childbirth. However, in the case of premature births, multiple births or Caesarian section births, employees are prohibited from working for a period of at least twelve (12) weeks. During the eight (8) week time periods before and after childbirth, the employee is entitled to maternity pay in an amount that equates to the employee’s average income earned during the thirteen (13) weeks before maternity leave begins.

• Employees may not be terminated during the pregnancy or for four (4) months after childbirth unless the employer was not informed of the pregnancy or childbirth or has judicial consent which may only be granted in limited circumstances including the following:
• The employer demonstrates that it cannot continue the employment relationship without causing damage to the business because of downsizing or closing down operations or if the employee agrees to the termination during a court hearing after the parties have been instructed by the judge on the protection against termination of employment under the Maternity Protection Act;
• The employee has culpably or negligently failed to perform her work without legitimate cause prior to the leave;
• The employee committed a breach of trust or disclosed a trade secret without employer’s consent;
• The employee substantially defamed the employer; or
• The employee is guilty of an offense punishable by imprisonment for more than one year

Parental Leave Protection

Both the mother and the father are entitled to up to two (2) years of parental leave from the date of birth during which time they receive a nursing allowance. Employees can choose between several different nursing allowance structures – some based on income and others based upon a lump sum calculation. The law also extends special protections against terminations from employment during this time. Additionally, both parents have the right to work part-time up until their child’s seventh birthday but in order to qualify, the employee must work for a company that employees more than twenty (20) employees and must have worked continuously for the employer for a period of at least three (3) years.

Sick Leave

Pursuant to the Principle of Loss Compensation Law, an employee unable to work due to sickness or accident is entitled to six (6) to twelve (12) weeks leave depending on the number of years of service. During the leave, the employee is entitled to receive the same amount of pay as he/she would have been paid while active. In other words, the employee is entitled to salary, overtime, bonus payments and commission. If the employee was injured at work, non-manual employees are entitled to eight (8) weeks of pay and manual worker s are entitled to ten (10) weeks of pay. At the expiration of paid leave, employees are entitled to social security benefits from the state.