Austria: Summer in Sight: A practical guide to vacation leave under Austrian employment law (Part II)

1    Vacation and Recuperative Purpose

The starting point for the legal assessment is the statutory purpose of vacation leave: the Austrian Vacation Act (Urlaubsgesetz) primarily envisages the physical and mental recovery of employees. This recuperative purpose is not merely a matter of national law but is also safeguarded under EU law. The CJEU consistently emphasizes in its case law that the entitlement to paid annual leave constitutes a particularly significant principle of EU social law.

2    Vacation and and availability – Where Are the Limits?

The question – discussed with increasing intensity particularly against the backdrop of advancing digitalization – of whether employees have a right to non-availability during their recreational leave remains unresolved at the highest judicial level. Clauses in employment contracts requiring employees to remain available at short notice even during vacation should, as a matter of principle, be avoided. In an older decision, the Higher Regional Court of Vienna (OLG Wien) qualified an employer's request to an employee to remain available for telephone enquiries during vacation as an implied revocation of the vacation agreement (OLG Wien 34 Ra 121/92).

Particularly in the case of higher-qualified activities, the boundaries between mere availability and actual work performance are increasingly blurred. While merely carrying a work phone is, in itself, still unproblematic, the attentive monitoring or even handling of work-related matters will regularly constitute work performance. The more influential the employee's position, however, the more it may be argued that a certain degree of availability during vacation is reasonable. Whether availability clauses may be permissible in individual cases therefore depends significantly on the specific activity and position of the employee and should be examined with caution on a case-by-case basis.

3    Data Protection Risks Associated with Mobile Work During Vacation

In addition to employment law issues, data protection risks are increasingly coming to the fore. Particularly in the case of workation models, access to company data frequently occurs via public Wi-Fi networks or insufficiently secured connections.

From the perspective of the GDPR, however, the employer remains obliged, irrespective of the place of work, to ensure appropriate technical and organizational measures for the protection of personal data. Practically relevant points of concern include, in particular, access via unsecured networks, lack of encryption, or the use of private end devices. These issues can be effectively addressed through internal policies on mobile work and technical precautions.

4    Workation

The combination of vacation and work also raises numerous legal questions. The following points should in any event be considered when enabling employees to work from vacation locations:

• Not Vacation, but Work: Despite working from vacation locations, the employee is not on vacation but is performing their work remotely – workation is therefore generally only a special form of telework. Accordingly, all statutory, collective bargaining, and contractual obligations arising from the employment relationship must also be observed "on workation".
• Written Telework Agreement: In particular where work on workation is not merely a one-off occurrence but is intended to take place on a regular basis, a written telework agreement is required (Section 2h AVRAG). However, an agreement is also advisable for one-off cases, inter alia in order to establish data protection-related particularities in connection with workation on a legally sound basis.
• Employment Law of the Host Country: Depending on the duration and nature of the activity, mandatory national employment law provisions of the host country may also become applicable. Particularly in the case of longer stays abroad, any mandatory application of such provisions should be examined in advance.
• Social Security & Tax Law: Where work is performed abroad, this may, in addition to employment law implications, also have social security and tax law consequences, which should in any event be examined beforehand.