- An associate on my team said he has a cough and fever, can I require him to visit the doctor?
According to the Spanish law, the company must guarantee the safety and health of employees and, in that sense, the company should adopt collective or individual preventive measures that are appropriate, according to the prevention services. In principle, the company can’t require an employee to visit a doctor, the company can only recommend it. However, according to article 21.1 of the Health and Safety Act, in the event that working conditions in the company imply an serious and imminent risk for the employees, the employer is obliged to: (i) inform of this risk immediately (in this case to the health authorities); and (ii) in case of serious and imminent and inevitable risk, adopt the necessary measures and instructions so that employees can interrupt their work and even abandon the workplace. Serious and imminent risk, according to article 4.4 of the Health and Safety Act would be understood as any result that will probably result in an immediate future and could result in a serious damage for the employees’ health and safety.
- What if my associate needs to travel due to a business-critical issue?
Governments have recommended avoiding any trip that is not essential. As we indicated in the previous question, the company must guarantee health and safety at work, so as a guarantee of that duty, the company must analyze if the business critical issue that needs to be solved with a trip or the problem arisen is of such importance that it cannot be solved by adopting any other measure, assessing the situation of the Coronavirus of the country or city of destination, as well as the measures that the company should adopt after the employee returns from the trip, in order to guarantee the safety of the others employees.
- One of my associates is on a 14-day work from home requirement and he missed an important deadline. Can I discipline him?
Based on the fact that these 14 days of work from home is a pre-cautionary measure and the employee is not ill, provided that the employee had the time and the correct conditions to perform and deliver the work within the fixed deadline, then they could be sanctioned. The employee is exempt from moving from their home to the workplace, but they are not exempt to provide their services with the necessary diligence and complying with the corresponding deadlines.
- Who in the enterprise can be told of an associate’s physical well-being and recent travel?
According to the data protection law (LO 3/2018) information about the employee’s health, such as the medications they take or the diseases they have, are personal data. As the physical well-being and recent travel information can be considered as personal data, this information should only be known by the HR department.
- What can I disclose about an associate to his or her colleagues with respect to being on a 14-day work from home requirement or government-mandated quarantine?
The fact that an associate is put on a government-mandated quarantine or is sent to work from home during 14 days is something that may be communicated to the rest of associates, as we understand would be justified from a health and safety perspective.
- An associate has asked to work from home because he is afraid of contracting coronavirus at the office. What can I do? Can I discipline him if he refuses to come to the office?
The answer to question 1 is also relevant to this question. According to article 21.1 of the Health and Safety Act, in the event that working conditions in the company imply an serious and imminent risk for the employees, then it would be allowed for an employee or for the works council to paralyze working activities for those people that may be affected by coronavirus. Serious and imminent risk, according to article 4.4 of the Health and Safety Act would be understood as any result that will probably result in an immediate future and could result in a serious damage for the employees’ health and safety. However, these entitlements are not applicable in case of mere supposition or social alarm, as this does not trigger the effect of the aforementioned articles. In such a case where a decision of not attending work is taken by an employee, based merely on subjectivity or social alarm, he or she could in principle be sanctioned. Up to which point this sanction could be considered unfair, due to the sensibility of this matter, is uncertain. We would advise that the company warns the employee prior to issuing a sanction.
- Does the Social Security leave apply to associates, or their immediate family members, who may contract coronavirus?
Any health and safety measures described in the Law apply, in principle only to employees. In this case, however, as the employee’s health could be affected in case a family member is sick, we would understand that due to a health and safety reason of the other company’s employees’, effective measures should also be applied to such an employee with sick family members.
- If an associate contract the coronavirus, is s/he covered by Workers’ Compensation benefits?
In case an employee is sick from Coronavirus, he would be covered by the Spanish Social Security medical assistance.
- My associate asked for a “reasonable accommodation” around the Coronavirus. What is that and do I have to address it?
In the event that the associate requests the company a measure of adaptation due to the coronavirus, the company should analyze the request and determine whether the alleged reasons justify the decision to change the associate conditions and under what specific circumstances they should do so. An organizational option, where appropriate, is the application of teleworking, provided that such situation is agreed with the associate. Again, we need to distinguish between what would be considered social alarm and a serious risk for the employee.
- Is it okay for a manager to ask an associate if the associate has a fever if the associate advises that s/he is sick?
Yes, they can ask, but the information provided by the associate is to be kept confidential. If the associate doesn’t want to disclose such information, the manager cannot investigate further. However, the company has the obligation to apply the preventive measures it deems appropriate to guarantee the safety and health of the workers at its service in all aspects related to work that are under its management.
- Can we take an associate’s temperature to determine whether s/he has a fever?
We understand that the company is not entitled to measures an associate’s temperature, for various reasons: (i) the employer is not a medical institution and therefore not capable of making a health and safety evaluation; (ii) the employer’s obligation, in case there are serious evidences that an associate could be affected would be entitled to send the associate to the health and safety mutual or to the social security to do such a test. This would have the consideration of a paid remuneration.
- Can I ask my associates to test for the coronavirus?
Please note that according to the article 22.1 of the law of prevention of labor risk just in the case that the employee grants his/her consent can be subjected to a medical examination. Despite of that, that same article regulates the exceptional case in which the worker’s consent would be not necessary. This is the case when it is necessary to know the health status of workers, as long as it may pose a risk to the worker himself, to other workers or to other people related to the company. In such a case the company would be entitled to request a test from the associate. Please note that this is a restrictive article, so it would not apply as a pre-cautionary measure.
- What work can the associate perform while off?
The same work as he/she usually does, with exception of any work that implies the associate to leave his own domicile.
- Can I meet other associates outside of work?
Yes, if this is during working hours. After working hours, the associate should do no work, just as it would be in a normal situation.
- If an associate notified me that she has been diagnosed with the coronavirus and/or exposed to the coronavirus, am I required to directly report to a state agency (or direct the associate to do so)?
Following previous questions, in application of Article 21 of Law 31/1995, of November 8, on Occupational Risk Prevention, the employer must adopt the measures and give 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. Therefore, the company must ask the worker not to go to work and immediately communicate their situation to the health authority. Notwithstanding, the company may communicate this situation to the risk prevention service, so that they may adopt the measures they deem appropriate.
- Should I ask for a doctor’s note for an associate returning from a government-mandated quarantine period?
The General Directorate for Health has indicated that workers in solitary confinement due to coronavirus will be able to benefit from sick leave for common illness. Consequently, they will have the right to enjoy the corresponding benefits. Therefore, like in any other medical leave, for the worker to return to work, they must obtain the medical discharge and must deliver it to their employer, in order to be able to go back to work.
- Can I require my associates to wear protective gear?
The Occupational Risk Prevention Law establishes that when workers are or may be exposed to a serious and imminent risk during work, the employer will be obliged to inform all affected workers as soon as possible about the existence of that risk and about the measures adopted or that should be adopted, where appropriate, for protection. It is important to keep in mind that the protection equipment that the company intends to implement must be approved by the health authority as effective to avoid or reduce the risk and coordinated with the prevention service and the prevention delegate representing the workers. In other words, it’s a foreign authority that will state which is the correct protective material.
- One of my associates is on a 14-day work from home requirement and cannot work from home. What do I do about her pay?
According to the Labor Guide, in the cases in which teleworking is not initially foreseen on the employment contract as a temporary measure that involves the provision of services outside the usual workplace, it could be adopted by collective or individual agreement, on an exceptional basis, for the performance of essential tasks that cannot be carried out at the usual physical workplace, and according to the regulations of the Workers’ Statute. Therefore, the company may agree with the associate the possibility of teleworking and, in this case, the company may pay the associate as if they went to their workplace.”
- The neighboring school shutdown to clean the facility for 2 days and my associate asked to work from home during this period because her child will be home. Should I allow this? What if the school closes for a longer period of time?
Labor regulations do not establish the obligation of the employer to grant this permit, although the employer must assess the possibility of granting the worker the flexibility that is necessary, in response to the exceptional and unforeseen situation of the Coronavirus and the organizational and productive needs of the company.
Suárez de Vivero attorneys are available to assist you with these and other workplace issues. For more information, visit https://suarezdevivero.com/
For more information please contact Joseph Granato, Communications Manager at L&E Global at firstname.lastname@example.org.