Due to the Covid-19 pandemic, work from home or telework became more and more important. "Work from home and teleworking have come to stay" has been a much-used phrase. KWR reported on the Austrian regulations regarding work from home (Update Homeoffice - Die neuen Regelungen ab 1. April 2021 im Überblick | KWR) and is supporting numerous clients in the implementation and further development of work from home arrangements in Austria and abroad. In this context, the following article will focus on cross-border telework in the EU from the perspective of social security law.
Covid-19 special scheme expiring on 30 June 2023
In 2020, the EU Administrative Commission adopted a Covid-19-related special arrangement for cross-border telework. One of the objectives of the regulation was that a worker’s inclusion in the social security system of a state should not change as a result of cross-border telework during the pandemic. Due to the special regulations, persons whose country of employment is Austria are also subject to Austrian social security legislation until 30 June 2023 if they do cross-border work from home because of Covid-19.
The legal situation as of 01 July 2023
Due to the expiry of these special regulations, there may be a change in the state in charge of a worker under social security law in cases of cross-border telework from 01 July 2023, i.e. if a substantial part of the professional activity is carried out from home. Such "substantial part" is assumed if 25% or more of the total activity - measured in terms of working hours and / or income - is done in another state.
Framework agreements with neighbouring countries
In order to counteract the change of the state in charge of social security when 25% or more work is performed in another state, Austria has already concluded a "Framework agreement on the application of Article 16(1) of Regulation (EC) No 883/2004 in the context of regular cross-border telework" with Germany, the Czech Republic and Slovakia, respectively. The agreements concluded so far are already valid from 01 January 2023 (Germany), 01 March 2023 (Czech Republic) and 01 June 2023 (Slovakia). However, as the Covid-19 special regulation is in force until 30 June 2023 and is not excluded in the framework agreements, the new framework agreements will only become effective as of 01 July 2023.
The agreements allow for social security jurisdiction to remain with the member state where the employer is based in cases of ordinary recurring cross-border telework up to a maximum of 40% of the total activity. If the rate of total activity in the worker's member state of residence exceeds 40% in telework, the worker's member state of residence takes in matters of social security for this part of the work.
The respective framework agreement is only valid between the two specific states which have concluded it and only if all the conditions in the respective framework agreement are fulfilled.
On the basis of such framework agreements, employers and workers can submit applications to the relevant institution in the state whose social security legislation is to be applied. Such exemption arrangements exclude the social security jurisdiction of the other state.
Your KWR Employment Law team will be happy to support you in clarifying the legal framework and the steps for implementation.