Given the current situation caused by Novel Coronavirus (COVID-19) and the recent measures announced by the government of the Community of Madrid, we want to provide a number of recommendations on how you can manage the current situation. we've answered some of the questions that may arise, pending the publication of the package of extraordinary measures that the Government is preparing (it is expected on Thursday, March 12).
1. Can employers' force an employee to come to the workplace, even if the employee is afraid of being infected? Can they force the employee to travel to a potentially dangerous area?
Unless new regulations are issued by the Administration, current regulations mean an employer can force employees to go to their workplace as usual or to travel to a potentially dangerous area, since the fear of not being infected does not authorise not going to work, unless a medical service has decreed preventive isolation.
As an exception, employees are entitled to not comply with the company orders, or even to interrupt their activity and leave the workplace, if a clear risk to their health arises from these situations. This means employees may refuse to provide services in the workplace or to travel to a potentially dangerous area if these situations involve a serious and imminent risk of coronavirus infection.
2. What happens if an employee must to be kept in quarantine? What if the employee is infected during the provision of services?
According to the Royal Decree 6/2020 published on March 11 2020, both the preventive isolation or 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 sick leave benefits for occupation hazards (if they meet the required conditions).
In both cases, the duration of this exceptional benefit will be determined by the medical leave justification for isolation and the corresponding medical discharge.
3. What obligations does a company have in terms of risk prevention?
A company has an obligation to guarantee and ensure the safety and health of its working people, being obliged to take all necessary measures for this purpose, in accordance with the Law of Labor Risk Prevention. As an example, it is advisable to remind 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 acute respiratory diseases, 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.
Moreover, it is also recommended to ban business trips to risk areas, as well as to restrict as far as possible trips to areas in which a large number of infections have been detected. Likewise, remote working is a preventive measure recommended by the Spanish Ministry of Labour that may be very effective in order to prevent the infection between employees, but without affecting the company's activity.
4. After the closure of schools, do parents have the right to be absent from work to take care of their children?
If the employee proves that he/she has no one to look after their child, he/she will be entitled to be absent from work to take care of the child, with said absence being considered as justified. According to Spanish courts, this conclusion must be reached on the basis of the obligation of the father and mother to look after their minor children provided in article 10 of the Civil Code. If the employee proves that it is impossible to leave the child with another person, such absence is not subject to disciplinary sanction by the company, since the official closure of the educational centres involves a justified absence.
It is not clear if these types of justified absences should be treated as paid leave or unpaid leave. However, article 30 of the Workers Statute ("WS") provides that the employee maintains the right to receive their salary, although he/she does not render services, only when the reason is attributable to the company. Hence, since the closure of the school of the employee's child cannot be considered a cause attributable to the company, it can be argued that such absence should be treated as unpaid leave (unless the collective bargaining agreement applicable to the company expressly provides that it should be a paid leave).
Notwithstanding the above, it is advisable to try to reach an agreement with the employee so that they can telework while schools are closed, or make up for the days not worked (as explained in the following section). Only if the employee is not willing to reach any kind of agreement, said justified absence could be considered as an unpaid leave.
5. What alternatives do the companies have in this situation?
• Remote work
When possible, those employees that cannot attend the workplace, either in order to take care of their children or as part of the preventive measures adopted by the company, should keep rendering services from their homes. For this purpose, the company shall enter into an individual remote work agreement with each employee, or enter into a collective agreement.
Notwithstanding the above, in case of serious and imminent risk to health, the company can force the employee to telework for a limited period of time (the incubation period is 14 days).
• Make up for the days/hours not worked
If it is not possible to implement remote work due to the particularities of the service or activity of the company, the company can reach an agreement with the employees to make up for the days/hours they do not work due to the situation with COVID-19 (closure of schools, preventive measures, etc.). The parties can choose between different formulas when compensating said absences:
i) Use vacation days or days of free disposal;
ii) Create a pool of days and return those days/hours of absence throughout the year.
• Suspension of employment contracts or working time reduction
In the event of a COVID-19 epidemic, according to article 47 WS, a temporary employment regulation file ("ERTE") can be processed in case of objective causes or force majeure:
i) Due to economical, organisational, technical or productive reasons that affects the company's activity by, for example, (i) shortage or lack of supplies or resources necessary to carry out the company's activity, or (ii) decrease in demand, impossibility of providing services or excess/accumulation of manufactured products. In this case, the company must comply with the procedure provided in article 47 WS, which involves a period of consultation with the workforce and/or their representatives.
ii) Due to force majeure, understood as the situation created by involuntary, unforeseeable facts or events external to the company's circle that preclude or have a direct impact on the employment activity, e.g. a high absenteeism of employees that 'prevent the continuity of the company's activity due to illness, adoption of medical isolation precautions or a decision by the health authorities'.
In this latter case, the procedure provided in article 51.7 WS must be followed, according to which: it is necessary (i) to obtain the authorisation of the relevant Labour Authority after processing the appropriate file, and (ii) start the procedure by means of a request from the company addressed to the relevant labour authority, together with those means of proof deemed necessary, and simultaneous communication to the employees' representatives. However, it is not necessary to carry out a negotiation procedure with the employees' representatives.
In both cases, the obligation to pay salaries disappears, and the employees can access unemployment benefits. The company must pay social security contributions for the affected employees during the period of the suspension and/or working time reduction.
Last reviewed 19 March 2020