The COVID-19 crisis has definitely changed employment relations in a number of ways, and we believe that some of these changes will become permanent in time. The pandemic has proven, for example, that teleworking actually is effective, and that it implies a number of benefits for the parties. Concerning employees, a greater flexibility and better work-life balance; for the employer, a decrease in fixed costs and also more flexibility. Of course, this new reality needs now to be further regulated in order to avoid abuse by any of the parties, but we definitely see a new panorama of employment relations ahead of us.
On the other side, the virus has substantially altered the country’s economy and year 2020 may unfortunately be the start of a long-term financial crisis that will probably affect a high percentage of work loss and a change of working conditions, in order to adapt to the new reality.
Decrees, orders or guidelines in effect and pertaining to reopening facilities.
- The state of alarm was declared on 14 March 2020 through Royal Decree 463/2020, of March 14, which restricted the free movement of people and the closure of venues and businesses. Nowadays, the state of alarm has been extended until June 21th, 2020. All restrictions are being progressively eliminated through the “Plan for the Transition to a New Normality (divided into 4 stages). The different stages are regulated in the following Orders:
- Order SND/388/2020 of May 3rd establishes the conditions for some business and services to open to the public, as well as for the practice of professional and federated sport during Stage 0. https://www.boe.es/eli/es/o/2020/05/03/snd388.
- Order SND/399/2020 of May 9th for the easing of certain national restrictions established after the declaration of the alarm status during Stage 1 of the Plan for the transition to a new normality. https://www.boe.es/eli/es/o/2020/05/09/snd399
- Order SND/414/2020 of May 16th, entered into force for the easing of certain national restrictions established following the declaration of the alarm state during Stage 2 of the Plan for the transition to a new normality. https://www.boe.es/eli/es/o/2020/05/16/snd414
- On June 6, 2020, Order SND/507/2020 was published, amending various orders to make certain national restrictions more flexible and to establish territorial units progressing to Stage 2 and 3 of the Plan for the transition to a new normality. https://www.boe.es/eli/es/o/2020/06/06/snd507.
Optimal approach to keep track of the latest updates.
The Government website publishes the most up-to-date news related to Covid19: https://www.lamoncloa.gob.es/covid-19/Paginas/index.aspx
- In addition, it is possible to see the latest news regarding unemployment benefits for employees affected by an ERTE in the SEPE webpage: http://www.sepe.es/HomeSepe/COVID-19.html
- On the following link it is possible to see the latest regulations and orders published in Spain: https://www.boe.es/biblioteca_juridica/codigos/codigo.php?id=355&modo=2¬a=0&tab=2
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
- Unemployment benefit: Employees affected by a Temporary Workforce Restructuring File (ERTE) due to COVID-19 will be entitled to an unemployment benefit up to 70% of their base salary for the first 180 days and 50% thereafter. Employees will be entitled to this benefit even if they lack the minimum period of paid employment necessary for it. The period during which employees receive such unemployment benefits will not count as towards “regular” unemployment used by the employee, which has a maximum period of use.
- Minimum Vital Income: Royal Decree Law 20/2020 of May 29th, grants an aid called Minimum Vital Income (MVI) “ingreso mínimo vital” as a benefit aimed at preventing the risk of poverty and social exclusion of people living alone or integrated into a unit of coexistence, when they are in a situation of vulnerability because of the lack of sufficient economic resources to cover their basic needs. The amount of the MVI will depend on the income each family has, so the State will contribute with the amount missing to reach the guaranteed minimum.
Requirements mandated by law or any official guidance.
- Royal Decree 463/2020 restricted the free movement of people and the closure of venues and businesses not considered essential. Companies have the obligation to inform, as soon as possible, about the existence of the risk and to adopt organisational or preventive measures that, temporarily, avoid situations of social contact, without the need to stop their activity. Companies have the obligation to guarantee health and safety in the workplace, according to the Action Procedure for Occupational Risk Prevention Services against exposure to COVID-19 that was published on February 28.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
- The preventive measures that should be adopted in the workplace will depend on the specific working conditions of the position. Notably, the Ministry of Health published a document entitled “Procedure for the prevention services of occupational risks of exposure to SARS-CoV-2 ”, which includes a series of preventive measures that must be adopted in the workplace. These prevention measures can be categorised as organisational measures, which includes applying measures to minimise contact between workers, such as organising shifts during working hours, redistributing spaces to guarantee the safety distance of 2 meters, reorganising tasks and facilitating remote working, etc.; collective protection measures, such as providing physical separation barriers, like windows, screens, transparent curtains and applying a more exhaustive cleaning service; and as personal protection measures, such as imposing the use of a masks, gloves and disinfectant gel for each worker. There are also Protocols with preventive measures for the trade sector to reopen depending on each specific sector.
Policies and procedures for telework once the business reopens.
- Work from home is one of the priority measures that the government has established to address the impact of COVID-19 and must be a priority over temporary termination or reduction of activity. On an exceptional basis, in order to implement remote work, the risk evaluation of the workplace will be done by a self-evaluation carried out voluntarily by the worker himself.
- In any case, when employees work-from-home due to COVID-19, the employer must guarantee that the measure should be temporary and extraordinary, and must be therefore reversed when the exceptional circumstances (COVID-19) cease to occur and must be in compliance with labour law and the applicable collective agreement. However, the Statute of Workers establishes that if teleworking wasn’t put in place as a temporary measure in the employment contract, the employer must have a written agreement in with its employees. The measure must not involve a reduction of rights in health and safety or a reduction in professional rights (salary, working day – including the registration of the working day which should keep to be registered-, breaks, etc., and companies must guarantee the necessary measures in order to be able to work from home. Work-from-home employees should not be required to cover costs for the necessary technical services of teleworking
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
- Royal Decree-Law 6/2020 published on March 11th 2020, establishes in Article 5 that in order to protect public health, the periods of isolation or contagion of workers caused by the COVID-19 will be considered as a situation equivalent to work accident, exclusively for the economic benefit of the Social Security system for temporary disability. This economic benefit (sick subsidy) will be up to 75% of the employee’s base salary. In addition, vulnerable individuals qualify for sick leave if their job puts them at risk of contracting COVID-19. Vulnerable individuals are considered those with cardiovascular pathologies, high blood pressure, diabetes, chronic lung disease, immunodeficiencies, cancer processes in active treatment. All individuals applying for vulnerable status must provide a medical certificate in order to receive the sick subsidy.
Employees who fear infection and refuse to work.
- In the event that working conditions in the company imply a serious and imminent risk for the employees’ health and safety, it is permissible for an employee or for the works council to suspend working activities for those individuals that may be affected by coronavirus (article 21.1 of the Health and Safety Act). However, fear of infection alone does not trigger the effect of the aforementioned articles. If an employee merely fears infection and refuses to work, he or she could in principle be sanctioned. To the extent this sanction could be considered unfair, due to the reasonableness of the matter, is uncertain. We would advise that employers warn the employee prior to issuing a sanction.
Disclosure of employees who are infected.
- Employers must adopt the measures and provide the necessary instructions so that, in case of serious, imminent and unavoidable danger, workers may stop their activity and, if necessary, leave the workplace immediately. An employer must ask that the worker to stay home and immediately communicate their situation to the health authority. Notwithstanding, the employer must communicate this situation to the risk prevention service, so that they may adopt the measures they deem appropriate (Article 21 of Law 31/1995, of November 8, on Occupational Risk Prevention).
- In order to promote work-life balance, the Government recognised the workers’ right to receive a reasonable accommodation and/or reduction of working hours, for employees who can prove duties of care for their spouse, partner and relatives to the second degree of consanguinity. This reduction may reach up to 100% of the working day. A reasonable accommodation must be requested by the employee – specifying scope, content and justification. Examples of a reasonable accommodation include: change of shift, change of schedules, flexible hours, midday break or continuous workday, change of function, etc. These measures will remain in force for three months following the end of the state of alarm.
To what extent can employers implement the following cost-reduction strategies as a result of COVID, and what are the primary limitations on each?
- Employer and employee must agree to specific vacation/holiday dates. Generally employers must prepare the company calendar at the start of the New Year, including employee holiday days. However, due to COVID19, an exceptional measure was adopted in the Royal Decree 10/2020, establishing that companies must grant, from March 30, 2020 and until April 9, 2020 (both days included), a recoverable paid leave to those employees working on non-essential activities. This paid leave is recoverable, which means that employees must recover those hours enjoyed as paid leave once the state of alarm finishes.
- Companies that have applied an ERTE to their employees due to force majeure related to COVID-19 will be able to benefit from up to the 100% social security contributions if on February 29, 2020 the employer has less than 50 workers, and the 75% of the contributions in the case that the employer had more than 50 employees.
- Salary reductions.
- Employers can implement salary reductions as a cost-reduction strategy due to COVID19. However, this strategy is understood as a permanent measure and not as temporary and it must be implemented by way of an employment agreement or following the substantial change of labour conditions procedure.
- The Government has ruled that the use of ERTE due to COVID-19 will not allow companies to make business dismissals on this basis. In addition, it foresees special conditions regarding the unemployment benefits for employees affected by ERTE and exemptions for companies that have made an ERTE, as we have explained above. However, these extraordinary measures shall be subject to the company’s commitment to maintain employment levels for a period of 6 months following the re-activation of the company’s normal activity. This commitment isn’t violated where an employment contract is terminated on the basis of disciplinary dismissal, resignation, retirement or total permanent disability of the worker, and in the case of temporary contracts where the contract is terminated on the basis of the scheduled end date of the project, or the performance/work/service has been completed. Companies that fail to fulfil this commitment will be forced to reimburse the total amount of the contributions provided by the Government, as well as surcharge and the corresponding delayed interest.
- As stated above, it is not possible to terminate any labour contract due to force majeure or objective reasons related to COVID-19, including economic, productive, technical and organisational causes until June 30, 2020. Such a terminated will be considered unfair dismissal.
- Facility closure.
- Employers can proceed with a facility closure. However, if dismissals are not implicit, employees will either need to be put on ERTE or salaries paid during the closure.
Tips, recommendations and common pitfalls.
- In order to promote a safe return to work we suggest companies take into account the new reality that has unfolded due to COVID-19 – updating company policies including those related to telework, wage/hour issues and vacation accordingly.