We take a detailed look at the latest updates affecting labour law, published in Royal Decree-law 8/2020, of March 17, on extraordinary urgent measures to tackle the economic and social effects of COVID-19:
- Preferential nature of remote working.
Organisational systems should be established to enable continued activity by alternative mechanisms, particularly by means of remote working, wherever technically and reasonably possible. These alternative measures, particularly remote working, should take priority over the temporary suspension or reduction in activity.
- Right to adapt or reduce working hours.
- Employees who can prove that they have a duty of care towards their spouse or partner, or blood relatives up to the second degree, are entitled to have their working day adjusted and/or reduced in exceptional circumstances stemming from measures to prevent the transmission of COVID-19.
- The initial specification is up to the employee, both in terms of scope and content.
The right to adapt the working day may relate to the distribution of working hours, or to any other aspect of working conditions. It may consist of changing shifts, altering working hours, flexitime, split or continuous working hours, changing the place of work, changing duties, changing the way work is performed (including remote working), or any other change in conditions that is available within the company, or that can be reasonably and proportionally implemented.
- Employees will be entitled to a special reduction in working hours, with a corresponding proportional reduction in salary.
The special reduction must be communicated to the company at least 24 hours in advance, and may amount to 100% of the working hours, if necessary.
In the event of 100% reductions in working hours, the employee’s right must be justified, reasonable, and proportional to the company’s situation.
- Measures to make the mechanisms for the temporary adjustment of activity more flexible, in order to avoid layoffs.
Exceptional measures in relation to procedures for the suspension of contracts and reduction of working hours due to force majeure.
- Suspensions of contracts and reductions in working hours directly caused by the loss of activity resulting from COVID-19, including the declaration of the state of alarm, which involve the suspension or cancellation of activities, the temporary closure of premises open to the public, restrictions on public transport and, in general, on the movement of people and/or goods, shortage of supplies that seriously impedes the continuation of ordinary activity, or, in urgent and extraordinary situations, due to a confirmed case of the virus within the personnel or the adoption of duly accredited preventive isolation measures from the health authorities, shall be considered as arising from a situation of force majeure,
- Specifics of the procedure set out in the regulations:
a) The procedure will be initiated at the request of the company, which will be accompanied by a report on the link between the loss of activity and COVID-19, and, where appropriate, the corresponding supporting documentation. The company must communicate its request to the employees and transfer the aforementioned report and supporting documentation, if any, to their representatives.b) The existence of force majeure must be confirmed by the labour authorities.c) The labour authorities’ decision shall be issued within five days of the request, following a report, where appropriate, from the Labour and Social Security Inspectorate, and shall be limited to verifying the existence, where appropriate, of force majeure as claimed by the company.
d) The company is responsible for deciding whether to apply measures to suspend contracts or reduce working hours, which will be effective from the date of the event giving rise to force majeure.
e) The Labour and Social Security Inspectorate’s report, which the labour authorities have the option to request, will be issued within a non-extendable period of five days.
Exceptional measures in relation to the procedures for suspension and reduction of working hours on economic, technical, organisational and production grounds.
- Specifics of the procedure set out in the regulations:a) In the event that the employees do not have legal representation, the committee representing the employees in the negotiation of the consultation period will be made up of the major unions, and representatives from the company’s sector. They will have legal authority to form part of the negotiating committee for the applicable collective agreement. The committee will be made up of one person from each of the unions that meet these requirements. If this representation is not formed, the committee will be made up of three workers from the company itself.
In any of the above cases, the representative committee must be set up within a non-extendable period of 5 days.b) The period of consultation between the company and the workers’ representatives, or the representative committee provided for in the previous point, must not exceed a maximum of seven days.
c) The Labour and Social Security Inspectorate’s report, which the labour authorities have the option to request, will be issued within a non-extendable period of seven days.
Extraordinary measures on Social Security contributions, relating to the procedures for the suspension of contracts and reduction of working hours due to force majeure regarding COVID-19.
- In cases of suspension of contracts and reduction of working hours authorised on the basis of force majeure, 100% of the Social Security contribution corresponding to the employer will cease for the duration of the period of suspension of contracts or reduction of working hours, provided that the company, as of 29 February 2020, has fewer than 50 employees. If the company has 50 or more employees, the exemption from the obligation will be equal to 75% of the employer’s contribution.
- This exemption is not applicable to employees, and they will be considered to have contributed during the period in question for all purposes.
Extraordinary measures for unemployment protection
- In cases where the company decides to suspend contracts or temporarily reduce working hours based on the extraordinary circumstances regulated by this Royal Decree-Law, the State Public Employment Service (SEPE):
- a) Recognises the right to contributory unemployment benefits for the employees concerned, even if they do not meet the minimum required period of employment and Social Security contributions.
- b) Will not count the time in which the contributory unemployment benefit is received for the purpose of calculating the maximum periods of entitlement to future benefits.
In any case, a new right to contributory unemployment benefit will be recognised, featuring the following specifics as regards amount and duration:
a) The regulating base of the benefit will be the result of computing the average of the bases of the last 180 days of contributions or, failing that, of the lesser period of time immediately prior to the legal situation of unemployment, corresponding to the time worked pursuant to the employment relationship affected by the extraordinary circumstances that have directly caused the suspension of the contract or the reduction of working hours.
b) The duration of the benefit shall be extended until the end of the period of suspension of the employment contract or temporary reduction of working hours.
The extraordinary measures in the field of labour law provided for in Royal Decree-Law 8/2020 are subject to a commitment by the company to maintain the employment relationship for a period of six months from the date of resumption of the activity.
The measures provided for in this royal decree-law shall remain in force for a period of one month from its effective date, without prejudice to the possibility of that period being extended by the Government by means of a royal decree-law following an assessment of the situation. Notwithstanding the above, those measures provided for in this royal decree-law which have a fixed term of duration shall be subject to this duration.
From the labour department at Bové Montero y Asociados, we will provide you with all the information and help you need to handle any situations that may arise.
Mr. José Luis Gómez
LABOUR MANAGER, BARCELONA
Mrs. Yolanda Pueyo
LABOUR MANAGER, MADRID