(i) Employee leave due to COVID-19 processed as occupational accident
The Royal Decree-Law 6/2020, of March 10, which adopts certain urgent economic measures for the protection of public health entered into force March 12, 2020, one day after the publication date in the Spanish Official Gazette.
According to the Fifth Article of the Royal Decree, coronavirus casualties will be equated with occupational accidents for the purposes of collecting social security benefits:
"1. In order to protect public health, those periods of isolation or contagion of the workers provoked by the COVID-19 virus will be considered, exceptionally, a situation assimilated to an accident at work, exclusively for the benefit of the Social Security system for temporary disability,.(...)
4. The date of the causal event will be the date on which the isolation or illness of the worker is agreed, notwithstanding the fact that the leave is issued after that date."
Therefore, as of March 11, 2020 employers can process the sick leave of workers infected with coronavirus as cases of temporary disability due to an accident at work. Please note that isolation or contagion of the workers due to COVID-19 does not mean that it is an occupational accident per se. The equivalence is made only for the purposes of collecting Social Security benefits resulting from the leave, that is 75% will be charged from the first day of leave, which is an enhanced benefit over sick leave due to common illnesses.
It shall be taken into consideration that the benefit that the workers receive in these cases shall be complemented up to 100% of their salaries if the collective bargaining agreement applicable to the company states as much, or if the company has established this practice.
(ii) Prevention of occupational risks
The Spanish Health Ministry published on March 5, 2020 the "Action Procedure for occupational risk prevention against exposure to the new coronavirus (SARS-COV-2)"1, by which it established that "it is up to companies to assess the risk of exposure and follow the recommendations issued by the prevention service on this matter (...)"
The procedure includes criteria based on which employers can differentiate between (i) risk exposure, (ii) low risk exposure and (iii) low chance of exposure, as well as the "Individual protection equipment" that companies shall make use of in the case of potentially exposed personnel, and in the handling of people under investigation or confirmed for coronavirus infection.
In the context of the COVID-19 outbreak, the Spanish Ministry of Labour has issued the "Action guide in employment field in relation to the new coronavirus"2 (the "Guide"), where it is stated the possibility of cessation of activity by a decision of the employers or employees.
Companies can adopt organizational or preventive measures that, temporarily, avoid situations of social contact, without the need to paralyze activity. However, as stated in the Guide, "companies shall proceed to paralyze labor activity in case there is a risk of contagion by coronavirus in the work center, this despite the activation of measures that allow the development of the labor activity in an alternative way or the adoption of measures of temporary suspension of the activity".
The decision to cease labor can also be taken by the employee. According to Section 21(2) of the Law 31/1995, of 8 November, on the Prevention of Occupational Risks, which establishes that "the worker shall have the right to cease work and to leave the workplace, if necessary, when he or she considers that such activity presents a serious and imminent risk to his or her life or health."
(iii) Remote work
To avoid the cessation of activity, employers have the alternative to implement the option of remote working, a measure already taken by many employers across Spain. In order to comply with the Spanish law and as the aforementioned Guide establishes, the decision to implement telework as an organisational measure will require:
- That it be configured as a temporary and extraordinary measure, which will have to be reversed when the exceptional circumstances cease to exist;
- It must comply with labor legislation and the collective bargaining agreement;
- The measure shall not entail a reduction of rights in terms of health and safety or a loss of professional rights (salary, working hours - including the registration of same, breaks, etc.);
- In the event that technological means are required, this should not entail a cost for the working people.
(iv) Total or partial suspension of activity
Section 47 of the Spanish Workers' Statute establishes the procedures to follow for collective dismissals, suspension of contracts and reduction of working hours. This mechanism foreseen by Spanish law applies to employers, which need to suspend their activity in whole or in part, either by decision of the Health Authorities or indirectly due to the effects of the coronavirus on the normal performance of its activity.
A company could be impacted by the coronavirus for organizational, technical or production reasons, among others:
- By the scarcity or total lack of supply of elements or resources necessary for the development of the business activity as a consequence of the effect of the coronavirus on supplier companies.
- A drop in demand, the impossibility of providing the services which constitute its object of activity, or an excess or accumulation of manufactured products, as a result of reduced activity on the part of client undertakings.
In any case, the employer shall follow the established procedure, which includes the period of consultation with the workers' representative or committee constituted for this purpose.
(v) Temporary Employment Regulation Files (in Spanish "Expedientes de Regulación Temporal de Empleo") ("ERTE")
This procedure allows the company to suspend employment contracts for the duration of the cause of the interruption, being a temporary and exceptional measure, not a permanent one. During this period, the company has to keep the affected workers registered to Social Security, and continue the employer's contribution.
In view of the possibility of activating this option, our recommendation is to have consensus with the workers' representatives. The file shall be submitted before the labor authority and may require interpretation: it must be established that there are circumstances of unpredictability, inevitability, impossibility and causal relationship derived from force majeure.
This requirement is something difficult to apply in circumstances without precedents such as the present. However, the Guide issued by the Spanish Ministry of Labour states that "the following, among other similar reasons, may be considered to justify an ERTE file due to force majeure:
- Absenteeism rates such as to prevent the continuity of the company's activity due to illness, adoption of medical isolation precautions, etc.
- Decisions of the Health Authority that recommend closure".
In addition, the aforementioned Guide specifies that "if the undertaking concerned does not communicate the ERTE file, but stops working, Section 30 of the Spanish Workers' Statute shall apply, so that the worker retains the right to his salary"3.
1. The Spanish version can be accessed at the following address: https://www.mscbs.gob.es/profesionales/saludPublica/ccayes/alertasActual/nCov-China/documentos/Procedimiento_servicios_prevencion_riesgos_laborales_COVID-19.pdf ↩
2. The Spanish version can be accessed at the following address: http://prensa.mitramiss.gob.es/WebPrensa/pdf/guia_definitiva.pdf ↩
3. According to Section 30 of the Spanish Workers' Statute - Impossibility of performance. – "If the worker cannot render his services once the contract is in force because the employer is late in giving him work due to impediments attributable to him and not to the worker, the latter shall retain the right to his salary, without being able to compensate him for the work he lost with other work carried out at another time." ↩
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
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.