Special care time Questions & answers from Rainer Kraft & Birgit Kronberger

Question-Answer Catalog

At the beginning of November 2020, on the occasion of the impending “lockdown light”, a political agreement in principle was reached on various changes to special care time, which are to come into force retroactively from November 1, 2020 (“Special care time 4.0”). This primarily concerns the creation of a legal entitlement for employees, an extension of the possible duration from three to four weeks and an increase in employer reimbursement from 50 % to 100 % of continued remuneration. What no politician mentions, however, is that the legal finalization of the planned changes will still take some time, as some further details are still being eagerly negotiated. The timetable: The amendment to the law is to be passed in the National Council plenum on November 20, 2020. The Federal Council will not meet again until December 3, 2020. The final enactment of the law by publication in the Federal Law Gazette may therefore not take place until the second week of December!!! Until then, the planned changes are basically lawless, so the principles of Special Care Period 3.0 still apply. Regardless of this, politicians and authorities consistently present special care time 4.0 as if it were already applicable law.

The “hard lockdown”, which will lead to the closure of kindergartens and schools from Tuesday 17.11.2020, raises a very urgent question for affected parents: Am I now entitled to special childcare hours or not? And for the companies, the question arises: Does special care time have to be granted or can it be pointed out that the planned changes have not yet been legally implemented?

Collection of questions and answers as an overview of the confusing situation on the subject of special care time:

Question 1: Does special care time 4.0 currently apply at all?
From a legal perspective, the planned changes to the special care period are not yet applicable law before they are published in the Federal Law Gazette (possibly not until December 2020). From this perspective, the matter is still up in the air.
However, as the draft law provides for a retroactive entry into force as of November 1, 2020 and is supported by a broad political consensus (i.e. the retroactive enactment of the law will almost certainly happen), it seems sensible from a practical point of view to apply the planned changes now. This is also supported by the fact that the responsible Federal Ministry (BMAFJ) has already been offering online information on special care time since November 12, 2020, in which the new legal situation is already presented as a fixed fact. Link to the special care time info of the BMAFJ

Question 2: What are the main new features of Special Supervision Period 4.0 (compared to the previous Special Supervision Period)?
The following important points in particular are new:

  • Legal entitlement for employees (instead of agreement principle),
  • possible duration of four weeks (instead of three weeks),
  • 100 % reimbursement for the employer (instead of 50 % reimbursement),
  • Special childcare hours are also possible (even without kindergarten or school closures) if a child under the age of 14 for whom childcare is compulsory is placed in quarantine by official order in accordance with Section 7 of the Epidemics Act.

Question 3: Can parents now claim special childcare time due to the hard lockdown?
Even if – as recommended (see answer to question 1) – the new legal situation is already assumed, it must be taken into account that the proposed legislation contains the following text: “The employee must inform the employer immediately after becoming aware of the closure and do everything reasonable to ensure that the agreed work is performed”. Link to the legislative proposal
This means: A legal entitlement to special care time only exists if no reasonable alternative care option is available. Since, according to current information, kindergartens and schools will offer care in small groups (“emergency care”) during the lockdown despite the closure or cancellation of classes, parents must also make use of this option from a labor law perspective. Only if a kindergarten or school does not offer such emergency care (e.g. complete lockdown due to quarantine) is there a legal entitlement to special care time.

Question 4: Is the entitlement to special care time also valid in the event that children are officially quarantined?
Yes. The entitlement applies to all children who are officially quarantined (= segregated) as a contact person (contact person with a suspected case of COVID-19). The entitlement to special care time is independent of whether the child itself remains asymptomatic or is ill.

Question 5: Does the entitlement to special care time also apply to employees who work in system-relevant areas?
The distinction between systemically relevant and non-systemically relevant areas of activity is no longer relevant. If the legal requirements are met, every employee is therefore entitled to special care time.

Question 6: Can both parents claim the special care time at the same time?
No. It is not possible to make use of the special care period at the same time. However, it is possible for one parent to take special care time first and then the other (i.e. one after the other).

Question 7: Is there an entitlement to special care time during vacation time or on non-school days?
No. There is no legal entitlement because the school is not closed at these times due to an official order.

Question 8: Can the special care period also be granted during COVID-19 short-time work?
Yes. The special care time can also be granted for the periods of actual employment in the context of COVID-19 short-time work, but not for the lost hours.

Question 9: What reimbursement options does the employer have?
The employer can be reimbursed for the remuneration paid to the employee during a special care period (limited by the ASVG maximum contribution base; in the opinion of the BMAFJ, the maximum monthly contribution base [2020: € 5,370.00, 2021: € 5,550.00] should be pro-rated according to the number of special care days).
The application must be submitted to the Federal Accounting Agency no later than six weeks after the end of the special support period.

(November 15, 2020 All information without guarantee)

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