1 The Covid-19 pandemic has shed light on situations and structures that otherwise remained invisible (ILO, 2023). For the first time, fundamental problems of the Austrian care sector became apparent to the larger public. This article takes a close look at some of the challenges migrant live-in care workers in Austria faced during the pandemic, focusing on the accessibility of relief measures set by the state and the provinces. The article analyses the structural characteristics of two Covid-19 relief measures within the larger context of both the legal map of the domestic care work sector in Austria and the social formations structuring it, such as circular migration patterns, social movements involved, and the gendered nature of the private household workplace.

2 The “Stay Here Bonus” and the “Hardship Fund” have been selected for analysis, as they present the two central Covid-19 relief measures in the domestic care work sector in Austria. The “Stay Here Bonus” targeted migrant domestic care workers specifically. It aimed to set a financial incentive for care workers to prolong their stays in Austria during the pandemic. The “Hardship Fund”, on the other hand, was the main relief measures targeting self-employed people in Austria. As most domestic care workers are self-employed, this measure was of great relevance to this group.

3 The legal analysis of said measures follows a Law and Society approach. Therefore, the law is understood as a social formation, that is a social field with distinct rules and actors, which creates social norms and control and interacts with other social spheres. Besides the exegesis of the legal text itself as well as the accompanying legal materials, a contextualisation within the larger setting of domestic care work in Austria is undertaken. Most domestic care workers are migrants and this fact influences the accessibility of the law. Through this contextualisation, the article aims to explore if and how problems which became apparent during the Covid-19 crisis are rooted in the legal regulation of domestic care work in the context of migration. The analysis of the two relief measures therefore focuses especially on the accessibility for migrant domestic care workers.

4 The article is structured as follows: In the first part, the Law and Society approach is presented, which informs the theoretical and methodological approach of this article. The second part provides an outline of the Austrian home care sector and its regulation. At the beginning, a “mapping” of the relevant law is undertaken (Galligan, 2007, p. 34) in order to identify and describe its prominent features as well as the societal context of the formalisation process of the domestic care sector in Austria in 2007 and the Home Care Act. For a comprehensive legal analysis, some elements of national immigration law and European Union (EU) law will also be presented. As most migrant domestic care workers in Austria are EU citizens, the law on free movement is relevant. The respective provisions are summarised and a critical assessment of the qualification as self-employment is given on basis of a literature review in the field of Austrian labour law.

5 The third part discusses the specific challenges in the context of the pandemic. First, some of the factual problems met by care workers and their clients during the pandemic will be presented. Here media reports as well as reports by the care worker’s self-organisation IG24 were consulted. As travel restrictions came into force to counter the spreading of the pandemic in Spring 2020, migration to Austria was limited and the dependence on care workers from Eastern Europe became apparent. The article then turns towards a legal analysis of the measures set by the Austrian state to relieve families in need of care work as well as care workers during the pandemic. The focus lies on the “Stay Here Bonus”, administered through the Austrian provinces on basis of a number of regional directives, and the “Hardship Fund”, administered through the Economic Chamber (Wirtschaftskammer, WKO) on basis of the Hardship Fund Act (Härtefallfondsgesetz). [3] Following an analysis of the legal set-up, both measures will be discussed in depth applying the Law and Society approach with a focus on accessibility in the context of migration.

Theoretical Framework: The Law and Society Approach

6 The article follows a Law and Society approach, which inquires after the intersection between society and legal norms and practices. It challenges the understanding of law as a neutral tool by which societies simply set standards and resolve disputes as it scrutinises the entanglement of law with other societal structures (Larson and Schmidt, 2014; Galligan, 2007). It looks not only at the normative dimension of the law in books, but asks how law works “in action”. Yet, merely pointing out the “gap between the law on the books and the law on the ground” would stop short of analysing the unequal power relations inhabiting this gap and shaping the actual access to rights (Blackett in Valverde et al., 2021, p. 121-122). This becomes evident in the context of migration, where “a world order that was thought of as based on singular and stable national law systems, through which individuals were supposed to be all equally governed as citizen-subjects” is destabilised and research is urged to acknowledge existing inequalities (Valverde et al., 2021, p. 4). Recent Law and Society approaches further encourage researchers “to pay attention to justice-seeking social movements“(Valverde et al., 2021, p. 6). In the field of domestic care work, workers’ collective actions, such as “media campaigns, lobbying efforts, hunger strikes, and calls for one-day work stoppages” have shaped the legal development on the international scale (Blackett in Valverde, 2021, p. 121).

7 Regarding methodology, D. Galligan identifies three approaches within Law and Society, one focusing on the interaction between law and other social formations, another focusing on the social character of law itself, paying less attention to interaction, and a third, combining both (Galligan, 2007). Due to the interdisciplinary audience this paper hopes to reach, focusing solely on the character of the law and legal analysis will not suffice. But neither will the first approach, which applies empirical methods to inquire about the perception and uptake of legal measures, but tends to take the law itself “as a fairly unproblematic constant” (Galliagan, 2007, p. 29). Therefore, this article follows the third one, the combined approach, as both the legal design of and factual barriers to the access to the Covid-19 relief measures for care workers are discussed. Methodologically, this means first to map and analyse the relevant legal order, and then turn to the question of interaction. Interaction in this context is understood as on the one hand describing how “various social elements combine and interact in the very formation of law”, and on the other as “the way specific sets of laws, specific designs, encounter the social environment.” (Galligan, 2007, p. 32) One then must return to the law and confront the contextualised conclusions, that is the observation of how the legal measures fare in interaction with other social spheres, “with the intentions of the law or the aims of legislature” (Banakar, 2011, p. 16).

Mapping the Context: Domestic Care Work in Austria

8 Austria is a conservative welfare state, employment and welfare regulation have traditionally interacted in a way to accommodate familial care work (Shire, 2015). Informal care within the family is the most important pillar of elderly care, circa 800,000 people are involved in the care of relatives, the share of women is 73% (Nagl-Cupal et al., 2018). In the past years, the growing number of elderly people in need of care and changing work realities, among them the larger workplace participation of women, pose challenges to the social organisation of care work. The number of people receiving an elder care allowance has risen from 280,000 in 1999 to 470,000 in 2019 (Statistik Austria, 2019). Consequently, the need for non-family care is increasing and a market with private actors providing care services is growing (Aulenbacher et al., 2018). This development is also driven by the availability of relatively cheap labour in neighbouring Eastern European countries (Österle and Bauer, 2016). One branch within this development is domestic care work. In 2023, 58,792 self-employed care workers and 922 recruitment agencies are registered with the Austrian Economic Chamber (WKO, 2023, p. 16). More than 90% of these domestic care workers are women, most of them are from Romania and Slovakia (Lichtenberger and Wöhl, 2022).

9 This makes the great social and economic importance of care work visible, but so far has not led to an upgrading of these activities regarding wages, working conditions, or prestige. As in many European countries (Van Hooren, 2018), domestic care work in Austria is primarily performed by women, mostly in the context of migration and under poor working conditions. Live-in care workers are often invisibilised, as of their isolated workplace in private households, where wages are low and labour law standards are often not met (Blackett, 2019). These challenges gained more attention in the past two decades, especially in the feminist debate (see e.g. Parreñas, 2001; Lutz, 2011; Blackett, 2019), where they are seen as part of a larger care crisis (Dowling, 2021; Fraser, 2016). Care work requires time and thoughtful judgments that involve all who are concerned (Tronto, 1998). Although more and more commodified, paid care work is still not perceived as real work, but remains highly gendered and devalued (Leiblfinger, 2020; Daly, Rake, 2003).

10 In Austria, a circular migration care model is widely established, where the worker lives in the client’s household for several weeks, before traveling back to her home country for a similar amount of time, during which another worker takes over. Most of them do not seek permanent migration (Österle and Bauer, 2016). The increase in care migration of women between Eastern and Western European countries has been driven by EU freedom of movement (Marchetti and Triandafyllidou, 2013). Accordingly, in Austria most care givers are currently EU citizens. On the basis of the Free Movement Directive, [4] § 51 (1) 1 of the Austrian Residence Act (Niederlassungs- und Aufenthaltsgesetz, NAG) [5] states that EU citizens are entitled to reside in Austria for more than three months if they are employees or self-employed people. The central norm for determining the applicable social security system in cross-border cases is Article 48 of the Treaty on the Functioning of the European Union (TFEU) and the corresponding coordination regulations (EC) 883/2004 and (EC) 987/2009. [6] These European norms are the legal basis for the circular migration patterns shaping the Austrian domestic care sector, which in 2007 was formalised through the introduction of specific regulation.

Challenges in Domestic Care Work during the Covid-19 Pandemic in Austria

17 Similar to its neighbouring countries Germany and Switzerland, Austria took immediate steps to ensure the care of its elders when the Covid-19 pandemic hit in Spring 2020. However, especially in regard to initial measures, the protection of care workers from overwork, contagion and financial insecurity was hardly an issue (Leiblfinger et al., 2020). Building on and contributing to the existing research, the following section first briefly summarises the challenges arising for transnational care arrangements in Austria during the first months of the pandemic. It focuses on travel restrictions and worker mobility as well as on the media discourse on these first responses. It then turns towards a legal analysis of two Covid-19 relief measures set by the Austrian state, namely the “Stay Here Bonus” and the “Hardship Fund”. Finally, these two measures are discussed from a Law and Society perspective with regard to the accessibility for migrant domestic care workers.

18 While the pandemic did make it very clear that many Austrian households depend on migrant workers to take care of elderly family members, their working realities initially worsened (Matei, 2020). When the borders closed in the Spring of 2020, some workers were stuck in Austria and could not return home after their rotation ended, while others were not able to enter Austria to start a new work rotation (Sagmeister and Matei, 2021). While live-in carers were deemed essential workers, the inequalities and dependencies already existing in transnational care arrangements were deepened and the workers’ interests were subordinated to those of their clients, the agencies and the involved state actors, as empirical research involving media discourses and stakeholder interviews has already shown (Leiblfinger et al., 2021b).

19 In Austria, the first measures taken to meet the immediate need for care, focused on enabling workers mobility. Care workers were brought into Vienna from Romania with special trains and flights in the spring of 2020. Austria negotiated bilateral travel corridors with Romania to this extent (APA, 2020). These measures were contested from the start, as the media coverage in Der Standard shows: [13] it criticised that it was unclear who would cover the costs, and if transportation would pose a health risk to both the individual care workers and their clients, but also to society at large in the light of the pandemic. Quarantines were ordered upon arrival, but not remunerated. As a result, care workers had to spend six weeks in Austria, but were only paid for four weeks, and were quarantined for another two weeks upon their return to Romania. From the perspective of the care workers’ self-organisation, this was received as a major burden, as is reflected in the pandemic-specific demands uttered by the IG24. [14] It was seen as disrespectful and exploitative that time spent in quarantine for the purpose of working in Austria was not qualified as working time. The IG24 further pointed out the lack of health protection measures. The long quarantines were obligatory measures for care workers to protect their clients from infection, while clients on the other hand had no obligation to quarantine for the sake of the care workers’ protection. Also, transportation to the individual workplaces was still organised in overcrowded minibuses, in which the safety distance could not be maintained. Accordingly, pandemic-specific demands included the qualification of quarantine as working time, the upholding of safety standards and additional financial support for 24-hour caregivers during the pandemic.

20 A number of media reports on the charter flights and trains suggests that the measures were merely expected to delay the collapse of 24-hour care, and pointed to the need for more substantial measures [15]. This strand of the public discourse acknowledged the ill-treatment of the workers. A. Bachmann described it as a “scandal” that workers were put up in shared rooms during quarantine [16]. Recurring themes in the analysed newspaper articles included that transportation could only ever be a short-term solution, that costs should not affect the workers and that the care sector in Austria is in dire need of reform [17]. G. Scherndl quotes a care worker stating that the importance of her job has become clear, yet the working conditions have not changed [18]. Another discourse element, discussed in the academic literature, was the characterisation of care workers as “devoted and dedicated heroines similar to their common characterisation as angels” (Leiblfinger et al., 2020, p. 146; Weicht, 2010). Then again, they also point to the fact that some agencies and households were found to “require care workers to remain in the households during their free time to prevent them from contracting the virus and passing it on to care recipients.” (Leiblfinger et al., 2020, p. 145) Similar observations were made in reports from care workers and support organisations, which are reflected in the analysed media reports [19]. Accordingly, in some cases, the reason for staying was that the agencies refused to make arrangements or kept postponing workers’ requests for return, the pressure was described as “enormous” [20]. An obligation to remain in the household outside working times is a violation of the care workers’ autonomy. Although Covid-19 regulations at the time, especially during lockdowns, did limit the personal freedom in regard to social contacts and outings [21], a ban on leaving the house was by no means covered. Being subjected to such instructions by the agencies points again to personal subordination of care workers and therefore to the questionable characterisation of such working relations as self-employment.

21 Pointing out the difficulties arising in the care sector during the pandemic, care workers and activists seized the opportunity to speak about structural problems regarding their work. As some of the analysed media reports show, individual care workers took stage in the media discourse [22], but the pandemic also had a sustainable effect on organisation: Initially organised in the Slovakian and Romanian communities, in 2021 care workers joined together with the support of activists to form the IG24. In their self-description and history of the organisation, they state that the increased requirement of a functioning self-organisation, but also the unusual media attention during the pandemic where drivers for the networks finally resulted in the founding of IG24. [23] They were able to make themselves and their critique heard, as will be shown regarding the care workers eligibility for the Hardship Fund.

Discussion: Accessibility to Covid-19 Relief Measures for Migrant Domestic Care Workers

32 Although no data has been collected on the specific uptake rates of the “Stay Here Bonus”, the Economic Chamber reported that many care workers extended their stay in Austria and prolonged their work cycles (WKO, 2020). Rotations were extended up to three times, which meant that the affected workers could not be with their own families during these difficult times, but stayed with their clients for up to three months (Sagmeister and Matei, 2021). This obviously led to longer working periods, and often also resulted in lesser leisure time, as private and professional care replacements tended to stay away during the pandemic. As has been reported in Germany, many households put visiting care services as well as supportive visits from relatives on hold for fear of contagion (Horn and Schweppe, 2020). The bonus was meant to recognise these additional burdens.

33 In the case of the “Stay Here Bonus”, the lack of a nationwide guideline for the application procedure resulted in a pot-pourri of different procedures. The variety of application procedures for the “Stay Here Bonus” in different provinces was criticised publicly in terms of accessibility [34]. The variety of procedures made it difficult for individual workers or families to understand which procedure applies to their case. This is of course even more the case for migrant workers who are not fluent in German and not familiar with the federal structure of Austria. Vidaflex, the trade union initiative for precarious self-employed persons, criticised not only the small amount of €500, demanding to double it, but also the lack of a nationwide uniform bonus procedure [35].

34 In all provinces, the legal form of the “Stay Here Bonus” did not entail a legal entitlement [36], but depended upon an administrative decision. A bonus might express some recognition and reduce hardship at a specific time, but it does not replace labour law entitlements. Bonuses were granted only once and were not enforceable before a court. This concern is reinforced by the fact that care workers themselves were not eligible to apply in all provinces. The lack of access to the measures by the actual addressees, the care workers, points to the contradictory status of their self-employment status. They were dependent on the collaboration of clients or agencies to access the bonus and/or reimbursement of costs. As a result, the agencies, in collaboration with the Chamber of Commerce could instate themselves as “problem solvers and saviours” (Leiblfinger et al., 2020, p. 146), while care workers became even more dependent on agency contracts. Similar constellations were put in place for the reimbursement of PCR test costs, again some care workers had to go through their client or agency to make their claim [37].

35 In Lower Austria, where the application went through the households, reportedly, many care workers had not yet received their bonus by summer and the government was not able to give information regarding the receipt of transfer forms [38]. In the Styrian model, the care receiver should forward the money to the worker and apply for a refund after presenting proof of this payment [39]. It therefore required the household to be in the financial situation to make this loan, but was better suited to ensure the money actually reached the care worker. The access of care workers to the bonus was secured most efficiently in Upper Austria. No intermediate steps were required and foreign bank accounts were included: Care workers could apply for the bonus directly and get it paid into their own account [40], including an account with a bank in Romania. Procedures in Vorarlberg point to the important role of agencies, as bonus application were filed through them [41]. On the one hand, it is the agencies’ job to support care workers and clients with administration, on the other hand, no procedures were in place to follow up on the money flows to workers. This arrangement demonstrates how widely assumed the involvement of an agency is in practice and also how some challenges faced by domestic care workers relate to their status as self-employed people depending largely on agencies and clients. However, in the Vorarlbergian case, the acceptance of applications by self-employed care workers without an agency ensured their access to the bonus.

36 Most of the application procedures for the “Stay Here Bonus” therefore reinforced dependencies of workers on agencies and/or clients, by making them eligible for application instead of the workers themselves. This reflects on the problem of bogus-self-employment, which was already laid out in the “mapping” section of this article as one of the fundamental characteristics of the legal regulation of domestic care work in Austria.

37 In case of the Hardship Fund, clear application rules were put in place at the federal level, however, their structural design, in particular the requirement of a tax ID and an Austrian bank account posed practical hurdles, especially in the context of migration. As a legal measure aimed at traditional self-employed workers, it did not meet the needs of self-employed domestic care workers. This again reflects to the fundamental characteristic of the Austrian regulation being the self-employment model and the problem of bogus-self-employment. The analysis of the two Covid-relief measures allows to answer the research question regarding challenges in their accessibility for migrant domestic care workers. It shows that the legal basis of domestic care work, in particular the self-employment model is the cause for many, but not all of the challenges.

38 The Law and Society approach proved useful for the analysis of the legal set-up of the relief measures and their effects in interaction with other social formations. It has been shown that access to the Covid-19 relief measures was mediated—and limited—by the widespread use of the self-employment model on the basis of the Home Care Act. While the legal analysis of the self-employment model and the requirements set in the discussed relief measures is the necessary basis for asking how these legal measures relate, their effect could only be fully understood by looking beyond the legal text to the law in practice. Therefore, the reports of the care workers themselves through their self-organisation were highly insightful. They pointed out that the Hardship Fund, designed for self-employed people, was not suitable for migrant domestic care workers within self-employment. However, besides the self-employment model, language barriers, administrative hurdles, and the private household workplace also limited access to Covid-19 relief measures on a more practicable level, as the discussion of the “Stay Here Bonus” has shown. Most provinces did not provide the information and documents such as application forms in other languages than German, and the documents were written in complex and technical language. This made it difficult for many applicants, be it care receivers or care workers. Procedures which granted eligibility to clients or agencies, but not directly to care workers, partly failed to ensure that the bonus did in fact reach care workers (Bachmann, 2020; Bachman, 2020a).

39 From a Law and Society perspective, it can be observed how the legal framework in interaction with the social formation of circular migration resulted in the exclusion of this particular group of workers. Yet we can also see how social movements interacted with the law and were able to amend the situation. The discussed open letter brought forward by a broad alliance of care workers organisations, care facilitators and NGOs drew attention towards the effects of requiring an Austrian tax number and an Austrian bank account on the migrant care workers’ ability to apply for funding. Gradually, the topic became subject to broad media coverage and the situation improved.

Conclusion

40 The measures initially taken by the Austrian government and regional governments to ensure care for the elderly during the Covid-19 pandemic focused on extending care workers’ work cycles and re-establishing their mobility. In doing so, the interests of care receivers were prioritised over those of care workers. This finding correlates with the analysis of the initial legalisation procedures regarding domestic care work in Austria in 2007. Already then, the formalisation process leading up to the implementation of the Home Care Act had focused on the care receivers’ over the care workers’ interests.

41 The discussion of the two concrete relief measures, the “Stay Here Bonus” and the Hardship Fund has revealed that access for migrant domestic care workers was difficult. This became evident through both an analysis of the legal design of the measures themselves and practical challenges regarding their application for which the article drew upon selected media reports and reports by the care workers’ self-organisation. Recent Law and Society approaches show that it benefits legal research to “pay attention to justice-seeking social movements“(Valverde et al., 2021, p. 6). This has proven true in the Austrian case, where social movements identified many of the challenges workers met in regard to the application of the law.

42 It was demonstrated how challenges faced by domestic care workers in Austria relate to their status as self-employed people. While they are formally self-employed, they find themselves in great personal as well as economic dependence on placement agencies, as well as on their clients. Accordingly, they depended on the cooperation of clients and/or agencies for the application for the “Stay Here Bonus” in most Austrian provinces.

43 Legal measures intended for traditional self-employed workers can hardly be transferred to the situation of migrant care workers. Because of their low income, which correlates with their working reality as circular migrants with gaps between rotations, they initially were excluded from the scope of the Hardship Fund. The requirements of the Hardship Fund interacted with social formations structuring the care sector, in particular the circular migration patterns, that resulted in the exclusion of a certain group of workers from eligibility. It became clear that the relief measures excluded migrant workers in particular. In the case of the Hardship Fund, three issues related to the status of migrant workers conditioned access: the language, the requirement of having a bank account in Austria, and indirectly also the tax threshold, which circular migrants typically do not reach due to low wages in the sector and regular breaks in-between working cycles. Regarding the “Stay Here Bonus”, the varying modes of implementation, defined by different categories of eligibility, served as mechanisms of exclusion towards workers, and made it particularly difficult for circular migrants who change their workplace often to ensure access to the bonus via (former) clients. Also, and this has proven a hurdle in regard to both measures, language barriers hampered accessibility.

44 At the same time, the pandemic has made the crucial role migrant domestic workers play in the Austrian care system visible and shed light on working conditions in the sector. The relief measures regarding travel corridors and the “Stay Here Bonus” remained “short-term solutions that failed to acknowledge the fundamental flaws and inequalities of a care model that relies primarily on female migrant workers and wage differentials within Europe” (Leiblfinger et al., 2020, p. 144). While the measures failed to acknowledge structural dependencies, the public debate surrounding their implementation addressed the current organisation of elderly care in a more comprehensive and critical manner. Austria has an urgent need for workers in the field of home care, and currently the crisis-ridden care regime is stabilised in the short term by a migrant work force under intolerable working conditions and often in the context of bogus-self-employment (Lichtenberger and Wöhl, 2020). During the pandemic, the domestic care sector received unusual media attention. Workers and their supporters were able to gain visibility in the public discourse and to improve access to the “Hardship Fund”. Domestic care workers were able to use this momentum to make some of their demands regarding pandemic relief measures heard.