On March 4, 2020, the Ministry for Work and Social Economy published a guide providing the necessary labour legislation on the measures to be taken by companies and employees who may be at risk of coronavirus infection.
The measures are analysed below from two perspectives:1) Measures for the prevention of occupational hazards and protection of employees` health.
1) Measures for the prevention of occupational hazards and protection of employees health.
In accordance with article 21 of Law 31/1995, on Occupational Risk Prevention (LPRL), when employees are or may be exposed to a serious and imminent risk of coronavirus infection in their workplaces, the company is legally required to:
i) Make the existence of said risk known as soon as possible.
ii) Take the necessary measures and give instructions so that employees can stop work and, if necessary, leave the workplace immediately.
Work stoppage by decision of the employees
In accordance with the provisions of section 2 of the aforementioned article 21 of the LPRL, employees, their chosen representatives or health and safety delegates, by majority decision, may stop work and leave the workplace when there is a risk of serious and imminent coronavirus infection.
Serious and imminent risk
Article 4.4 of the LPRL defines serious and imminent risk as “any aspect that is likely to materialize in the immediate future and could result in serious harm to the health of all employees.”
In the case of an exceptional situation, the interpretation to be made of serious and imminent risk must be a restrictive one.
Therefore, neither the mere assumption of serious risk nor public alarm are enough to fulfil the requirements of the aforementioned rules. What must take their place is an objective assessment of the facts of the matter.
2) Labour regulations
Whole or partial suspension of the company's activity by a Collective Redundancy Procedure (ERTE)
If the company finds it necessary to suspend its activity in whole or in part, either because of a decision by the Health Authorities or indirectly due to the effects of the coronavirus, it may do so in accordance with Article 47 of the Workers Statute.
Therefore, a company may be affected by the coronavirus and
apply an ERTE for:
a) Technical, organizational or production reasons such as:
i) The lack or complete absence of resources necessary for the development of the company's economic activity as a result of the effect of the coronavirus on supplier companies.
ii) A decrease in demand, the impossibility of providing the services that fall within its remit or an excess of manufactured products as a result of the decrease in activity by client companies.
b) Force majeure, caused by, among other reasons, absenteeism rates that prevent the continuity of the company’s activity due to illness, precautionary isolation measures or decisions by the Health Authorities that advise the closure of the company for health and safety reasons.
In the event that the company is affected by any of the productive, organizational, technical or force majeure reasons and does not proceed to file and communicate a Collective Redundancy Procedure (ERTE) but stops its activity, it must continue paying the salary to the employees. The work that the employees do not do during the stoppage may not be offset with other work carried out at another time.
To cope with the coronavirus crisis, companies can access other less restrictive mechanisms to organize their activity at different work centres.
Companies may exceptionally apply other organizational measures such as teleworking to carry out essential tasks that cannot be carried out in the usual work centre building, once the necessary health, preventive and precautionary measures have been established, in accordance with the procedures stipulated in the Workers Statute.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.