ADMINISTRATIVE HIGH COURT: REIMBURSEMENT UNDER THE EPIDEMIC ACT HAS TO INCLUDE PRO RATA SPECIAL PAYMENTS

Overview

If an employee was quarantined e.g. because of a suspected infection due to COVID-19, the employer is entitled to reimbursement for the remuneration which had to be paid regardless of the quarantine. The Administrative High Court dealt with the question whether the reimbursement of the remuneration in addition to the regular remuneration also has to include the pro rata special payments, even if the special payments were not due during the quarantine (Administrative High Court 24.6.2021, Ra 2021/09/0094).

Facts

In June 2020, the Magistrate of Vienna ordered the quarantine of an employee due to an illness with COVID-19. In September 2020, the company submitted an application to the magistrate for remuneration for part of the quarantine period for the continued payment of the employee's wages pursuant to Section 32 of the EpiG. The magistrate subsequently granted the application in part: The magistrate granted remuneration for the base salary, but with regard to any proportionate special payments, reimbursement was denied. The company did not prove that special payments had actually been paid for the quarantine  period. The company filed a complaint against the decision.

Entitlement to remuneration in the case of quarantine

If an employee is quarantined, the employer is in principle obliged to continue paying the remuneration. According to the so-called "loss of earnings principle", the employee must be paid as if he or she had actually performed the work. Due to the provisions of the Epidemics Act, the employer has a claim for compensation against the Federal Government (“Bund”). The Administrative High Court held that this claim for compensation is based on the concept of remuneration under labour law, which includes both the basic salary as well as any proportionate special payments to which the employee may be entitled.

Conclusion

In the ruling of the Administrative High Court, the company was also awarded a refund for the lost (pro rata) special payments. The remuneration is to be assessed on the regular remuneration and therefore also including pro rata special payments, irrespective of when the special payments are due and paid according to the respective applicable collective agreement. However, special payments which the employer grants the employee on a voluntary basis for the period of the quarantine are undoubtedly excluded from the refund.

Practical note

Employers who have not included special payments in the application for refund under section 32 of the EpiG may add the pro rata special payments to the application. Generally, this addition is also still possible in the appeal proceedings and as long as the decision is not yet legally binding.