Employee and Employer Rights During Covid 19 Pandemic Spain

The Covid-19 virus is spreading rapidly in the Spain, impacting all parts of everyday life, including the workplace. Therefore, Spanish employers are advised to take into consideration the following recommendations. Pursuant to Spanish law, an employer is responsible for the physical and psychological health and safety of the employees in the workplace and in this respect give instructions and take safety measures as reasonably can be expected from the employer.

What current restrictions are in place by the government?

On 18 March 2020, the Spanish government issued a decree that includes exceptional measures for those sectors and industries affected by COVID-19 in relation to the procedures of suspension of employment contracts and reduction of working hours due to force majeure causes.

New legislation specifies that in force majeure events, the company must submit an application request to the Labour Authority together with a report which contains the explanation of the correlation between the proposed measure and the measures implemented by the Government. The Company must also inform the employees of the suspension request made to the Authority and provide a copy of the request and accompanying documents to the workers’ representative, if any. If it is deemed appropriate by the Spanish authorities, a report will be issued within 5 days to this extent, and then a resolution will follow.

If employers cannot justify these measures based on force majeure causes, they must implement the process based on economical, technical, organizational and productive causes, which will be subjected to a negotiation period with the employee’s representatives.

In the case of suspension of employment contracts or reduction of working hours due to force majeure, the Social Security will exempt those employers who have less than 50 employees from the payment of the employer’s contributions. For those employers that have 50 or more employees, Social Security will exonerate 75% of the contributions to Social Security during this period. Such exemptions are conditional upon the employers maintaining employment levels in the 6 months following the re-activation of normal activity.

Special reduction in working hours: Those employees who, due to guardianship reasons, have a child under the age of twelve or a disabled person that does not perform a paid activity, will be entitled to a reduction in working hours of up to 100%. The employee’s salary will be reduced in proportion to the reduction in working hours. The employee must notify the Company 24 hours in advance.

From 17 March 2020 at 00:00, all Spanish land borders were closed – only Spanish citizens and residents in Spain, cross-border workers and those persons who prove force majeure causes or situations of need will be allowed to cross the borders. This restriction will not affect the transport of goods. Spanish maritime and air borders are still open, but the Spanish government has foreshadowed plans to close them in the following days if it deems necessary.

On 13 March 2020, the Spanish Government declared “alarm status”, which as per the regulations passed on 14 March, implies (among other measures) the following:

• General order to close retail commerce, with some exceptions such as food stores, drug stores or communication stores.
• General ban on citizen’s circulation rights all over the country. Employees are exempt for the purpose of going to work

In addition, the Spanish Government published new regulations on the application of specific measures with regard to COVID-19. The main regulations are as follows:

Measures to preserve employment: Social Security will provide special benefits for employers to enter into permanent-intermittent employment contracts (e.g. seasonal contracts, which are entered into on an ongoing basis but only for a limited number of months per year) and which cover contracts from February to June 2020.

The Government has established that both the preventive isolation and infection of employees due to COVID-19 must be treated as a temporary incapacity for accidents at work, regardless of whether the employees are infected during the provision of services and outside working time. This implies that the affected employees will be entitled to the relevant Social Security sick leave benefits for occupational hazards (if they meet the required conditions), which involves a payment of 75% of the employee’s monthly base contribution (unless the applicable CBA provides otherwise), which will be assumed by the Spanish Social Security.

All employment and labour proceedings have in general terms been suspended for the next 15 days, although proceedings of urgent filing can still take place (e.g. collective conflicts, violation of fundamental rights, holiday claims, etc.). Status of limitation and procedural terms are also being suspended for the duration of the status of the alarm, except for proceedings on collective conflicts and breach of fundamental rights.

What are the general principles an employer should or could apply?

In accordance with Spanish law, a company is obliged to ensure the safety and health of its employees, taking all necessary measures. It is recommended to inform the entire workforce of the preventive basic hygiene measures, recommended by the health authorities, such as frequent hand washing, avoiding contact with people that suffer from acute respiratory diseases, and avoiding touching eyes, nose or mouth with your hands before cleaning them, or covering your mouth and nose with the arms when sneezing or coughing.

• Implement a (verbal) policy to decrease face-to-face meetings and travel less, both professionally as privately
• Assess the risks faced by employees & visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
• Review the need for flexible working arrangements and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
• Review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
• Review relevant insurance policies and guidance issued by their insurers
• Update contact details for staff and management
• Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19; or who report symptoms and may have CoVID-19

From 17 March 2020 at 00:00, all Spanish land borders were closed – only Spanish citizens and residents in Spain, cross-border workers and those persons who prove force majeure causes or situations of need will be allowed to cross the borders.

On 13 March 2020, the Spanish Government declared “alarm status”.

Can an employer force an employee to work from home

At this point, working from home is a must since on 13 March 2020, the Spanish Government declared “alarm status” with a general ban on citizen’s circulation rights all over the country. Therefore, employees are exempt for the purpose of going to work.

If an employee is sent home, then what measures do employers have to take?

If employees cannot attend the workplace, either in order to take care of their children or as part of the preventive measures adopted by the employer, they should keep rendering services from their homes.

If it is not possible to implement remote work due to the type of service or activity of the employer, the parties can agree to make up for the days/hours — they do not work due to the situation with COVID-19 by using vacation days or days of free disposal or by creating a pool of days and return those days/hours of absence throughout the year.

In the event of a COVID-19 epidemic, a temporary employment regulation file (“ERTE”) can be processed if there is economical, organizational, technical or productive reasons that affects the company’s activity because of shortage or lack of supplies or resources necessary to carry on with the business activity, or decrease in demand and impossibility of providing services.

Moreover, in case of force majeure events, it is necessary to obtain the authorization of the relevant Labour Authority after processing the appropriate file, and start the procedure by means of a request from the company addressed to the relevant labour authority.

In both cases, the obligation to pay salaries disappears, and the employees can access unemployment benefits. The employer must pay social security contributions for the affected employees during the period of the suspension and/or working time reduction.

If the employee is quarantined, does the employer still have to pay the salary?

Yes, if the employee carries on working from home. That being said, any time that employees are unable to render services due to an absence like quarantine, infection will be considered as occupational illness. The subsidy (paid by the Spanish Social Security in full) amounts to 75% of the employee’s monthly base contribution – unless the CBA provides that the company must pay additional sums to complete the employee’s full salary. The base contribution is the employee’s total monthly remuneration subject to the annually-fixed maximum and minimum limits. Currently, the maximum limit for full-time employees is 4,070.10 euro per month and the minimum ranges from 1,050.00 euro to 1,466.40 euro, depending on the employee’s professional category.

If on request of the employer, the employee should stay at home due to a suspicion of being infected, does the employer still have to pay the salary?

If a potentially infected employee is able to provide services from their home and monitor their health, then he/she is entitled to pay.

What if the employee refuses to come to the office?

On 13 March 2020, the Spanish Government declared “alarm status”, which as per the regulations passed on 14 March, implies a general ban on citizen’s circulation rights all over the country. Employees are exempt for the purpose of going to work.

If childcare services and/or schools are closed, is it allowed for the employee to stay home? If yes, is the employee still entitled to his/her salary?

Employees with children whose schools have been closed may adapt their working conditions and reduce working hours under specific circumstances due to COVID-19.

Moreover, if the employee proves that he/she has no one to look after their child during the official closure of schools and child care centres, he/she will be entitled to be absent from work to take care of the child and it will be a justified reason for absence.

If the employee is still working from home, then he/she is entitled to salary.

What are employers’ obligations where offices are partially or fully closed?

If the employer decides to suspend employment contracts based on force majeure causes or an official health alert, or economical, technical, productive or organisational reasons arising from the situation, the employer will not be required to pay the corresponding salaries, provided that the employer complies with procedure for suspension of contracts and there are real valid causes.

If the employer decides to suspend work on its own initiative, and it does not follow the legal procedure to suspend the contracts, the absence of the employees must be treated as paid leave.

Can an employer forbid his employees to travel abroad privately and/or on business purposes?

Yes, an employer may restrict business travel, monitoring the travel advisories and daily updates issued by WHO and governmental authorities. Employers may not prevent employees from undertaking personal travel, however it will be subjected to recent decrees.

Can an employer oblige employees to travel abroad for business?

Since employers are obliged to safeguard the health and safety of employees even when on business travel and should such employers not handle risks that employees may incur while travelling on business in an effective manner, employers may be liable for any resulting harm to its employees. Therefore, in accordance with recent government orders due to lockdown, employers should prevent employees from travelling on business throughout the course of the “COVID-19 emergency” period and assess options to physical meetings by using digital tools such as conference calls or video conferences.

Can an employer force the employee to take holidays on (very) short notice? “Forced leave”?

In accordance with article 38.2 of Workers Statute, employers cannot force an employee to take leave, short or long notice. It has to be mutually agreed upon.

Can an employer force the employees to cancel their holidays on short notice?

Employers cannot force an employee to cancel a leave on a short or long notice. The employer may ask for the benefit of the company but the employee is not obliged to agree to it.

Can the employer ask employees whether they have recently visited a risk area and if yes, what can the employer do?

In accordance with new guidelines released by the Supervisory Authorities, based on the legitimate interests pursued by companies and provided that GDPR principles are observed, employers may now ask their employees whether they have the virus, as well as additional queries such as asking employees to confirm that they have:

• visited those countries considered “red zones”
• been in contact with anyone that has the virus

Can employers take the temperature of an employee?

In accordance with new guidelines published by the Supervisory Authorities, it would be possible for Spanish employers to check the employee’s temperature before allowing them to enter the workplace; only if no other additional measures like remote working are available, based on proportionality criteria.