This article examines employers' obligations and rights in Spain in dealing with the coronavirus (Covid-2019) outbreak.
There are no legally binding provisions specific to the coronavirus ('CV') in Spain. Employers must take into account relevant general laws or regulations, and, where appropriate, applicable collective bargaining agreements and individual employment contracts.
Employers' general duty of risk prevention
Employers must effectively ensure workers' health and safety (s4.2 d) and 19.1 of the Workers' Statute, and s14 of Act 31/95 on the Prevention of Occupational Risks, the 'Act'). This Act establishes an employer's 'general duty of protection' with regard to workers.
An unforeseen situation as serious as the CV outbreak requires that employers should be fully prepared to meet their numerous obligations under this duty, especially those related to avoiding all potential risks; implementing and applying a prevention plan, risk assessment and preventive planning; providing workers with suitable work equipment and means for personal protection; adequately informing workers and their legal representatives; training workers; drafting emergency plans; implementing appropriate measures in cases of serious and imminent risk; regularly monitoring workers' health; and protecting sensitive personnel, specifically in connection with maternity and minors.
In view of the seemingly uncontrollable spread of CV at the time of writing, it is also essential that employers take particular care to comply with their obligations under the following EU Directives (all transposed into Spanish law):
- Council Directive 1989/654/EC, of 30 November, concerning the minimum health and safety requirements for the workplace, transposed into Spanish law by Royal Decree 486/1997, of 14 April.
- Council Directive 1989/655/EEC, of 30 November, on work equipment, transposed into Spanish law by Royal Decrees 1407/1992, of 20 November, 773/1997, of 30 May, and 1215/1997, of 18 July.
- Council Directive 1990/679/EEC, of 26 November, on the protection of workers from risks related to exposure to biological agents at work, transposed into Spanish law by Royal Decree 664/1997, of 12 May, and by Order ESS/1451/2013, of 29 July.
What if production is hindered or prevented by lack or scarcity of supplies?
If, coronavirus prevents or hinders production, a Provisional Redundancy Plan (ERTE) may be implemented for as long as it is deemed necessary (s47.3 and s51.7 of the Workers' Statute, further developed by s31 to s33 of Royal Decree 1483/2012, of 29 October). ERTE use is encouraged if workers' representatives are also in agreement. In any case, the labour and social consequences of a production stoppage will be those inherent to the suspension of employment contracts in terms of the benefits of the parties (s 45.2 of the Workers' Statute) and protection against partial unemployment [s267, b), 1º of the General Social Security Act].
One or more workers appear to be or are suspected to have become infected
The employer must immediately call the telephone number provided by the Public Health Service in each Autonomous Community (e.g. Madrid is +34 900 102 112). The employer must subsequently follow the instructions given by the health authorities. The fact that a potential infection is notified to the health authorities by a worker, their colleagues or relatives does not exempt the employer from their obligation to inform the authorities directly.
The employer has authority to, and must, instruct the potentially infected worker to remain absent from the workplace and stay at home. The worker's consent is not needed (s5, letters b and c, s20.2 and s29.1 of the Workers' Statute). These circumstances would be deemed by the Social Security authorities to constitute medical leave due to common illness. Paragraph 2 of s173.1 of the General Social Security Act would apply for the first three days' leave; from day four to fifteen and beyond would be based on temporary disability.
This type of medical leave situation will involve suspension of the employment contract (s45.1.c of the Workers Statute) with the employee being entitled to return to work once medical leave finishes (s48.1 of the Workers' Statute) However, if the worker were able, and accepted, to work from home, without any modification of their working conditions - it would distort the temporary disability situation and payment for this work would, naturally, be incompatible with the statutory sick pay.
It is confirmed that one or more workers have become infected
In this case it is even more important that the employer immediately communicates this information by calling the telephone number provided for this purpose by the Public Health Service in each Autonomous Community. The employer must subsequently follow the instructions provided by the health authorities. Again, the employer will not be exempted from its obligation if the worker, or someone else directly informs the health authorities.
As above, infected workers will be deemed to have a temporary disability and will be subject to the provisions in s169 et seq. of the General Social Security Act. However, in this instance it will not be possible for these workers to stay at, or work from, home and, therefore, they should not receive remuneration from their employer. Where agreed upon either collectively or individually, however, they may be paid the employer's supplement to Social Security sick pay.
Mainly in this instance, it is worth arguing that the cause of the temporary disability may not be a common illness, but an occupational accident, in view of the concurrent circumstances of, for example, the contagion having occurred during a business trip to a high-risk area, in which case the benefits provided by law (s 172, b) and 173.1 of the General Social Security Act) would apply to the temporary disability.
Other workers who are quarantined as a result of their having been in contact with infected individuals will be subject to the scheme set out in the following section.
Workers are quarantined, whether in Spain or abroad
If quarantined in Spain, these workers will be deemed to have a common illness-derived temporary disability and the rights referred to above will apply to them. Consequently, the employer will not be required to pay these workers, with the exception of any agreed employer's supplement to Social Security sick pay. The employers are also not liable to bear the costs of the workers' confinement except if infection occurred while the worker was performing a professional activity on the employer's orders.
The employer has to adopt exceptional measures because of serious or imminent risk
If multiple workers in an organisation appear to be infected or actual CV contagion becomes widespread, the situation will be qualified as one of 'serious and imminent risk'. That is defined as a risk that might be seriously damaging to the health of workers in the near future (s4 of the Prevention of Occupational Risks Act).
Under these circumstances, the employer, in addition to notifying the health authorities and following their instructions, must comply with the obligations in s21 of the Prevention of Occupational Risks Act, in particular:
- They must inform all workers of the risk of contagion and of the measures that have been adopted.
- They must take suitable measures to enable workers to stop working and, if necessary, to immediately leave the premises. In this case the employer must not require workers to resume work at the premises for as long as the hazard persists, unless there are justified exceptions.
- They must rely on the workers' own initiative to take appropriate measures to avoid the consequences of the imminent hazard for themselves and their colleagues if workers are unable to contact their hierarchical superiors.
Interruptions of work for these reasons have no impact on workers' salary or employment, unless they have acted in bad faith or committed serious negligence (s21.4 of the Prevention of Occupational Risks Act).
The Employment Inspectorate instructs the employer to halt production
The Employment Inspectorate can impose an immediate halt on production processes when it is determined that there are serious and imminent risks to workers' health and safety. This is, naturally, a power that can only be exercised in extreme circumstances and with statutory guarantees (in the mandatory procedure regulated by section 44.1 of the Prevention of Occupational Risks Act).
A decision of this type is seriously detrimental to business interests. If the circumstances posing serious risk to the workers' health and safety are the result of willful or negligent actions on the employer's part, this does not qualify as a case of force majeure, and the employer is not released from its obligation to pay and/or compensate workers during the period when the production process is interrupted (s44.2 of the Prevention of Occupational Risks Act. It must also continue to pay contributions on the workers' behalf until the termination of their employment contracts.
However, in the event that the decision is based on objective circumstances and not the employer's negligence or willful conduct, we believe the employer will not be required to pay salaries and social security contributions. This seems to be supported by the ambiguous wording of s44.2 of the Prevention of Occupational Risks Act which refers to 'the measures that may be established in order to guarantee such payments', with no mention of the employer.
This restrictive interpretation is consistent with the wording of s30 of the Workers' Statute, which establishes that, for the employer not to be released from its obligation to pay salaries, the stoppage must have been caused 'by obstructions attributable to the employer, but not to the worker'.
The workers' representatives decide to halt business activities
The Workers' Statute authorises risk prevention delegates and, in their absence, workers' legal representatives (a term that comprises representatives from workers' committees and trade unions) to agree to completely stop business activities under extreme circumstances of imminent risk of occupational accidents.
This exceptional power may only be exercised when these circumstances occur. It is therefore difficult to apply to a case of CV contagion resulting from employer negligence in connection with the prevention of this particular health hazard. In any case, the potential interruptions would be of very short duration and, would not have any impact on the employment rights of those workers affected by them.
The employer orders a worker to travel to a region or country where there is significant risk of contagion
In the event that the worker acts as instructed and decides to take the risk, CV contagion may qualify as an occupational accident.
If, on the other hand, the worker refuses to travel because of the serious danger to which they would be exposed, it is unlikely that this action would be deemed a disciplinary breach that may lead to a valid disciplinary dismissal.
Disciplinary penalties for obstructing employer's preventive
Section 19.2 of the Workers' Statute establishes that workers are required to comply with the statutory and regulatory health and safety measures in place at the work establishment. In addition, the Workers' Statute requires workers to abide by the measures adopted for the prevention of risks at the workplace and to fulfil orders and instructions given by their employer in the regular exercise of its managerial powers.
It is thus obvious that the employer may impose disciplinary penalties on workers who obstruct the implementation of CV preventive measures, or who refuse to follow the employer's orders, such as temporarily leaving their job and staying at home under the circumstances described above. It is advisable, as it always is when exercising disciplinary powers, to ensure the penalty imposed is proportionate to the infringement.
Potential imposition of penalties on the employer
The lack or insufficiency of prevention measures to avoid or reduce the risk of CV contagion in the workplace will be an employment infringement subject to penalties, as determined by the Employment Inspectorate.
Section 13.8, b) of the Act on Infringements and Penalties in the Employment Jurisdiction (Royal Legislative Decree 5/2000, of 4 August), refers to either failure to provide mandatory prevention resources or failure to comply with obligations arising when such resources are in place for business activities which are statutorily considered to be dangerous or to involve special risks.
This infringement is categorised as very serious, and the penalty scale is from EUR 40,986 to EUR 819,780.
It is worth employers becoming familiar with the ten recommended actions in Directive 1/2020 of the Presidency of the Italian Council of Ministers that all citizens, and therefore employers and workers, should follow. These are:
1. Wash your hands frequently.
2. Avoid contact with individuals who suffer from acute respiratory conditions.
3. Do not touch your eyes, nose or mouth without having washed your hands first.
4. Cover your mouth and nose before you sneeze or cough.
5. Do not take antiviral drugs or antibiotics that have not been prescribed by a doctor.
6. Thoroughly sanitise potentially hazardous surfaces with chlorine or alcohol-based disinfectants.
7. Wear a mask only when you have symptoms of infection, or if you come into contact with infected individuals.
8. Products made in China or packages sent from China (or any other country where CV is widespread) are not dangerous.
9. Call the telephone number provided by the health authority if you have a temperature, or are coughing, or have returned from China (or any other country where CV is widespread) less than 14 days ago.
10. Pets do not spread CV.
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.