As of March 18, 2020, Royal Decree-Law 8/2020of 17 March on urgent and extraordinary measures to address the economic and social impact of COVID-19, covering many different areas of business activity, has been published in the BOE.
We summarize below the mainlabour measures, highlighting measures to make the activity more flexible for ERTES, the promotion of telework, adaptation of the timetable and reduction of hours, and for the self-employed, access to cessation of activity is made more flexible so that they can quickly collect a benefit in the event of economic difficulty.
MAIN LABOR MEASURES
With regard to the strictly working area and with the basic and fundamental objective of trying to avoid mass contractual terminations as a result of the exceptional situation we are experiencing, the files on regulation of temporary suspension employment (ERTES) or reduction of hours are made more flexible; and a whole range of complementary measures are taken, such as the promotion of telework, adaptation of the schedule and reduction of the day, etc…
1. Exceptional measures in temporary employment regulation (ERTE) files for force majeure (suspension and reduction of hours)
DRL 8/2020 provides that the means adopted by public health administrations, such as closure of centres, cancellation of activities, restrictions on the mobility of persons or goods or isolations to avoid contagion, basically all those contained in RD 463/2020, of 14 March, by which the state of alarm was decreed in our country, may justify ERTE “force majeure.”
ERTE force majeure: Those with their direct cause in loss of activity as a result of COVID-19, including the declaration of the alarm status, shall be understood as such, involving suspension or cancellation of activities, temporary closure of publicly influxed premises, restrictions on public transport and, in general, the mobility of persons and/or goods, lack of supplies that seriously prevent the continued ordinary development of the activity, or in urgent and extraordinary situations due to the contagion of staff or the adoption of preventive isolation measures decreed by the health authority, are duly established.
The following specialties will apply to them (taking into account that these will not apply to STE initiated or communicated before 18 March 2020):
- In these cases, where there is no need for negotiation of any kind with the legal representation of the workers, the procedure shall be initiated at the request of the undertaking, which shall be accompanied by a report/memory relating to the linkage of the loss of activity as a result of COVID-19, as well as the corresponding supporting documentation.
- The undertaking shall communicate its application to the workers and transfer the above report and supporting documentation, if any, to the representation thereof.
- The existence of force majeure shall be found by the labour authority, whatever the number of workers concerned.
- In the event that the labour authority requests a report (it is optional) from the Labour and Social Security Inspection (ITSS), it will issue it within 5 days.
- The labour authority shall give a decision within 5 days of the application and shall simply verify the existence, where appropriate, of the force majeure alleged by the undertaking. It will be up to the undertaking to decide whether to apply measures for the suspension of contracts or reduction of hours, which will take effect from the date of the force majeure.
The procedure applicable to files affecting persons who have the status of working partners of partner cooperatives and labour societies included in the General Social Security Scheme or in some of the special schemes protecting the unemployment contingency, it shall be the specific one provided for in Royal Decree 42/1996 of 19 January, except as regards the time limit for the issuance of a resolution by the labour authority and the ITSS report, which shall be governed by the above points.
2. Exceptional measures in temporary employment regulation (ERTE) files for organisational, productive and technical reasons (suspension and reduction of hours)
In cases where the company decides to suspend contract or temporarily reduce the day for these reasons, the highlights are the following procedural specialties that will not apply to THETE initiated or communicated before March 18, 2020 (date of entry into force of the RDL) and based on the causes provided for in the RDL that we are summarizing :
Forecasts for cases where there is no legal representation of working persons: the representative committee for the negotiation of the consultation period shall consist of:
- The most representative and representative trade unions in the sector to which the company belongs and with standing to be part of the negotiating committee of the collective implementation agreement. The committee shall consist of 1 person for each of the trade unions meeting those requirements, with decisions being made by the relevant representative majorities.
- Otherwise, by 3 workers of the company itself, chosen in accordance with Article 41.4 et.
- The period available, in any of the above cases, for the establishment of the representative committee shall be 5 unforeseen days.
- The period of consultations with the workers’ representatives or the representative committee as seen in the previous point shall not exceed a maximum of 7 days.
- The ITSS report, if requested by the labour authority, shall be issued within 7 days.
The procedure applicable to files affecting persons who have the status of working partners of cooperatives of associated labour and labour societies included in the General Social Security Scheme or in some of the special schemes protecting the contingency of unemployment, it shall be the specific one provided for in Royal Decree 42/1996 of 19 January, except as regards the development of the consultation period and the ITSS report, which shall be governed by the provisions of the previous points.
3. Exemption of business contributions to Social Security for companies that instemese ERTE from suspension or reduction of day by force majeure related to COVID-19
Before indicating what this measure consists of, it is noteworthy to note that, unlike what has been set out in respect of the procedural specialties of THERS by force majeure, here if its extension is established to those affected by ERTE authorized or initiated before 18 March 2020,that is, provided that they derive directly from COVID-19.
The measure is that the General Treasury of Social Security (TGSS), for the duration of the period of suspension of contracts or reduction of authorised time-time period related to COVID-19, shall exempt the undertaking from the payment of the business contribution provided for in Article 273.2 of the LGSS, as well as that relating to quotas for joint collection concepts , in a:
- 100% if, as of February 29, 2020, you had fewer than 50 workers on social security.
- 75% when on that date it had 50 or more workers on high.
It will be the company that requests this exemption from fees from the TGSS, communicating the identification of the workers and the period of the suspension or reduction of the time.
Working persons shall not be affected by this exemption, while the period is considered to be actually quoted for all purposes, without the application of Article 20 of the LGSS.
4. Extraordinary unemployment protection measures for workers affected by ERTE referred to in the previous paragraphs.
As long as the extraordinary situation arising from COVID-19 is maintained, workers, including Article 264 of the LGSS and those who have the status of working partners of labour societies and associated labour cooperatives who are released for unemployment, whose employment or corporate relationship has been initiated before 18 March 2020 (date of entry into force of the RDL) who are affected by the decision of their contract undertakings or suspend temporarily reduce working hours by force majeure or for economic, technical, organisational and production reasons, under Article 47 ET, based on the extraordinary circumstances regulated in the DRL, or where its undertakings are already incurs in proceedings communicated, authorised or initiated before 18 March and based on the causes provided for therein :
- They shall be recognised as the unemployment contribution benefit even if they do not have the minimum period of listed occupation necessary for this purpose.
- Its duration shall extend until the end of the period of suspension of the employment contract or reduction of the day.
- The basis for the benefit shall be that resulting from counting the average basis of the last 180 days quoted or, if not, the period of time less than, immediately before the legal unemployment situation, worked under the employment relationship affected by the extraordinary circumstances that have directly led to the suspension of the contract or the reduction of working hours.
- The benefit periods consumed during that suspension will not count as spent. That is, in the face of hypothetical future performance “the meter will be reset” and the performance will be replenished.
- Unemployment benefits received by discontinued fixed workers who have been suspended from their contracts as a result of COVID-19 during periods which have been active may be re-received with a maximum limit of 90 days when they are again in unemployment.
- As long as the current situation involving, inter alia, movement limitation, applications for initial discharge or resumption of out-of-term unemployment benefit and benefit will not mean that the duration of the entitlement to such benefit is reduced.
5. Exceptional measures to facilitate teleworking.
Organizational systems will be established to maintain activity through alternative mechanisms, particularly through remote work, with the company having to take appropriate measures, if this is technically and reasonably possible and if the necessary adaptation effort is proportionate.
These measures should be prioritised against temporary cessation or reduction of activity.
The obligation to carry out the risk assessment, on an exceptional basis, shall be understood to be fulfilled through a self-assessment carried out voluntarily by the worker himself.
6. Right to adapt working conditions and reduced hours by exceptional care circumstances linked to COVID-19.
The measures taken in this area are aimed at promoting labour reconciliation by ensuring the possibility that employed persons are absent from work in the face of the need to care for persons in their care (children and adults after the closure of schools, nursing homes or day centres) without such lack of assistance being the cause of disciplinary dismissal (art. 54.1 ET) , defining the situation justifying absence during this emergency situation and establishing, on the one hand, alternative rights (right of adaptation or reduction of the day) and, on the other hand, establishing the right to the so-called ‘special day reduction’, which participates, albeit with specialties, in the legal nature of the reduction of the time laid down in Article 37.6 OF ET.
In particular, the following are regulated:
- Workers who attest to care duties with respect to the spouse or de facto partner, as well as to relatives out of insanguinity until the second degree of the worker, shall have the right to access and/or reduce their working day when exceptional circumstances are present relating to the actions necessary to prevent community transfer of COVID-19.
- Such circumstances shall be deemed to occur where the presence of the worker is necessary for the care of any of the persons indicated who, for reasons of age, illness or disability, needs personal and direct care as a direct consequence of COVID-19.
In addition, exceptional circumstances shall be deemed to occur where there are decisions taken by the registry authorities relating to COVID-19 involving closure of schools or otherwise providing care or care to the person in need of them and where the exceptional circumstances requiring the presence of the worker, where the person who had so far been in charge of the direct care or assistance of the spouse or family member up to the second degree of the worker could no longer do so for justified reasons related to COVID-19.
- It is an individual right of each parent or caregiver, which must have as a budget the co-responsible sharing of care obligations and avoid 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 accessing it in the same undertaking.
- The initial concretion corresponds to the worker, both in scope and content, provided that it is justified, is reasonable and proportionate, taking into account the specific needs of care to be provided by the duly accredited worker and the organizational needs of the undertaking. Company and workers should do their best to reach an agreement.
- The right to adapt the day may relate to the distribution of working time or any other aspect of working conditions, which may consist of shift change, schedule change, flexible schedule, split or continuous day, change of work center, change of functions, change in the way of the work is provided, including the provision of remote work, including the provision of remote work , or in any other reasonable and proportionate, taking into account the temporal and exceptional nature.
- In the case of a special reduction in the day (with a proportionate reduction in their salary, in the situations provided for in Article 37.6 ET: legal guardian of under 12 years of age or disabled; family care up to 2nd grade; hospitalization and continued treatment of minors – up to 18 years – affected by cancer or serious illness), guarantees, benefits will apply , or specifications currently planned in addition to the following specialties:
- It must be communicated 24 hours in advance.
- There is no limitation on your enjoyment by minimum or maximum percentage of the day and whatever the reduction will not imply changes in the rights and guarantees established in the order for the situation provided for in Article 37.6 ET.
- You can reach 100% of the day if necessary (in this case it is specified that it must be justified and reasonable and proportionate in view of the situation of the company).
- In the case of direct care of a family member, until the second degree of inanguinity or affinity, which for reasons of age, accident or illness cannot fend for himself, it will not be necessary for the family member who requires care and care not to perform paid activity.
Finally, and in the event that the worker is already enjoying an adaptation of his/her day by conciliation, or reduction of the working day by child or family care, or any of the conciliation rights provided for in the labour order, including those set out in Article 37 of the ET itself, he may temporarily waive or have the right to have the terms of his enjoyment a change provided that :
- exceptional circumstances to which mention has already been made are present, and
- the application is in the same way as the exceptional period of the health crisis and is accommodated by the specific needs of care, duly accredited, and the organizational needs of the company. Unless otherwise evidenced, the application shall be presumed to be justified, reasonable and proportionate.
7. Extraordinary cessation of activity benefit for self-employed workers affected by an alarm status declaration linked to COVID-19.
This benefit is established on an exceptional basis and limited validity to 1 month, from March 14, 2020 (date of entry into force of RD 463/2020), or until the last day of the month in which the alarm status ends, to be extended for more than 1 month.
Beneficiaries shall be self-employed or self-employed persons (including those who have the status of working partners of partner cooperatives who have opted for their membership as self-employed persons under the appropriate special scheme):
- whose activities are suspended, under the Royal Decree decreed by the state of alarm, or,
- when your billing in the month before the benefit is requested is reduced by at least 75% from the average billing for the previous semester.
The following requirements must be met:
- Be affiliated and discharged on 14 March 2020 in the Special Regime of Social Security of Self-Employed or Self-Employed Workers (RETA) or in the Special Regime for the Social Security of Sea Workers (RETMAR).
- Suspension of your activity by declaring the alarm status or accreditation to reduce your turnover by at least 75% compared to the average billing of the previous semester.
- Be aware of the payment of social security fees. However, if, on the date of suspension of activity or reduction of turnover, the managing body is not aware of it, the managing body will invite you to pay to enter the due fees within the unbreakable period of 30 calendar days. The regularization of the overdraft will have full effects on the acquisition of the right to protection.
The amount of the benefit shall be determined by applying the:
- 70 % to the regulatory base, calculated in accordance with Article 339 of the LGSS.
- 70% of the minimum contribution base in the RETA or RETMAR where the minimum contribution period is not credited for the benefit.
The duration of the cessation of activity in these cases shall be 1 month, extending, where appropriate, until the last day of the month in which the alarm status ends if it is extended.
The time of its perception shall be understood as quoted and shall not reduce future periods of performance.
Finally, it must be taken into account that the perception of this benefit will be incompatible with any other of the Social Security system.
If you have any questions or need any clarification about these urgent and extraordinary work measures, you can
any of our advisors so we can help you.