EMPLOYMENT MEASURES IN SPAIN
1. Current situation.
As a consequence of the current health crisis at the national and international level due to the devastating spread of the Coronavirus (also known as Covid-19), the Government of Spain has so far approved the following regulations as a matter of urgency:
Royal Decree-Law 6/2020, of 10 March, adopting urgent measures in the economic area and for the protection of public health.
Royal Decree-Law 7/2020, of 12 March, adopting urgent measures to respond to the economic impact of COVID-19.
Royal Decree 463/2020, of 14 March, declaring a State of Alarm for the management of the health crisis situation caused by COVID-19.
- Royal Decree-Law 8/2020, of 17 March, on extraordinary urgent measures to deal with the economic and social impact of COVID-19.
2. Measures adopted in the field of labour and social security law.
The measures approved in the area of labour relations by the Spanish Government due to the impact on the economy of the Covid-19 health crisis are aimed at strengthening the protection of workers and companies that have been affected by this health emergency and also at making labour relations more flexible in order to adapt to this extremely serious situation.
Likewise, in terms of redundancy proceedings (hereinafter ERTEs) [Temporary Employment Regulation Procedures], the regulations have been clarified allowing the adoption of an ERTE due to force majeure in those cases in which the employee has been prevented from carrying out their functions as a result of the declaration of the State of Alarm or isolation due to Covid-19.
In addition to this, measures have been adopted to promote teleworking or distance working, so that companies avoid, as far as possible, suspending their activities with the negative consequences that this entails and thus minimize the risk of contagion.
The most important measures are summarized below:
a) Isolation arising from or contagion by Covid-19 shall be considered to be a “work accident”.
In other words, for those cases in which employees are in quarantine or infected by Covid-19, this will be considered, exceptionally, to be the equivalent of a work accident or an occupational disease.
Accordingly, employees in such situations will be entitled to receive a temporary disability benefit equal to 75% of the regulatory base from the day after they leave.
This benefit is available to all employees and self-employed persons, provided that they are registered with the social security system.
b) Bonuses for tourism, commerce and the hotel and catering industry.
All those companies involved in tourism, commerce and the hotel and catering sector (provided they are linked to the tourism sector), whose productive activity is generated in the months of February, March, April, May and June, and which hire or maintain employees with fixed and discontinuous contracts during these months, shall be granted a bonus of 50% of the company quota for common contingencies, as well as for joint collection of unemployment, FOGASA and professional training. The duration of the bonus shall be from 01.01.20 to 31.12.20, except in the Balearic and Canary Islands, where it will be applied during the months of February and March.
c) Flexibility in the processing of ERTEs due to force majeure.
In this regard, all those suspensions of employment contracts or reductions in working hours directly caused by loss of activity resulting from government measures adopted as a consequence of Covid-19 (including the declaration of the State of Alarm) and which involve the suspension or cancellation of activities, temporary closure of premises, restrictions on public transport and on the mobility of people and goods, lack of supplies, or urgent situations due to staff contagion and preventive isolation measures shall be considered force majeure.
Due to the extraordinary urgency required to adopt measures such as the ERTEs, the deadlines for their processing have been made more flexible. Exceptionally, the resolution of the Labour Authority, following an optional report by the Labour Inspectorate, which establishes the presence of force majeure, must be issued within a maximum of 5 days from the date of its request. This contrasts with the previous time limit, which could be up to 15 days.
Furthermore, because of the extraordinary need to speed up the procedure, there shall no period set down for the establishment of a special negotiating body or a period of prior consultation, as the consultation period was normally 15 days and the time limit for the establishment of the special negotiating body was 7 days, sometimes up to 15 days.
In place of this, the company must communicate its request to the workers and transfer the previously mentioned report and supporting documentation, if any, to their representatives.
d) Enable access to unemployment benefits for employees without the required contribution period.
In the cases of ERTEs, due to the special circumstances derived from Covid-19, the right to contributory unemployment benefit is recognized for the employees affected, even if they have not fulfilled the minimum period of contributory payments normally necessary to do so.
e) Periods of unemployment as a consequence of ERTEs arising from Covid-19 shall not be taken into account.
In the cases of ERTE due to the special circumstances derived from Covid-19, the period in which the unemployment benefit is received at the contribution level as a result of the aforementioned extraordinary circumstances shall not be counted for the purpose of consuming the maximum established periods for receiving it.
f) Exemption of companies from the obligation to pay social security contributions for employees affected by a force majeure ERTE due to Covid-19.
In the ERTEs processed and authorized on the basis of temporary force majeure linked to Covid-19, the Tesorería General de la Seguridad Social (General Treasury of Social Security) will exempt companies from the payment of their company contribution, as well as that relating to contributions for joint collection during the period of suspension of contracts or reduction of working hours authorized on that basis in cases when a company, on 29 February 2020, had less than 50 employees registered with Social Security. If the company had 50 or more employees registered with the Social Security authorities on that date the exemption from the obligation to pay contributions will be 75 % of the company's contribution.
(g) Employees may adapt or reduce their working hours by up to 100%.
Employees who can prove that they have a duty of care towards their spouse or partner, as well as towards their blood relatives (to the second degree) shall be entitled to have their working day adapted and/or reduced when exceptional circumstances arise in connection with the actions required to prevent the community transmission of the Covid-19.
Such exceptional circumstances shall be understood to exist when the presence of the working person is necessary for the care of any of the persons indicated in the previous section who for reasons of age, illness or disability, require personal and direct care as a direct consequence of Covid-19. Likewise, exceptional circumstances shall be considered to exist when there are decisions adopted by the government authorities related to Covid-19 that result in the closure of educational centers or of any other nature that result in the need for care or attention to the person in question. Exceptional circumstances requiring the presence of the working person shall also be considered to exist when the person who has hitherto been responsible for the direct care or assistance of the working person’s spouse or relative (up to the second degree) cannot continue to do so for justified reasons related to Covid-19.
The right provided for in this article is an individual right of each parent or caregiver, which must be based on a co-responsible distribution of the duties of care and the avoidance of the perpetuation of roles, and must be justified, reasonable and proportionate in relation to the situation of the company, particularly in the case of several workers having access to this right in the same company.
h) Promotion of teleworking.
Measures are established to promote the use of those organizational systems that allow activity to be carried out through alternative mechanisms, particularly by means of telework, with the company having to adopt the appropriate measures if this is technically and reasonably possible and if the necessary adaptation effort is proportionate.
These alternative measures, particularly distance working, should take priority over temporary cessation or reduction of activity.
i) Enabling self-evaluation in the area of prevention in the workplace.
It is established that, in order to facilitate teleworking in those sectors, companies or jobs in which it was not foreseen until now, the obligation to carry out risk evaluation, in the terms provided in Article 16 of Law 31/1995, of November 8, on the Prevention of Occupational Risks, will be understood to be fulfilled, exceptionally, through self-evaluation carried out voluntarily by the employees themselves.
This text is for information purposes only and does not constitute legal advice.