The outbreak of Novel Coronavirus (COVID-19) is a worldwide pandemic. Based on the World Health Organization’s declaration that this is a public health emergency of international concern, the Spanish Government has taken a string of measures to fight the spread of COVID-19 in the country. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
What measures has the government introduced to respond to COVID-19?
On 13 May, the Spanish government approved the following measures:
- The duration of ERTEs (i.e. suspension of contracts or reduction of working time) based on Force Majeure grounds can be extended, at most, until 30 June 2020.
- Companies domiciled in offshore financial havens will not be able to implement an ERTE.
- Companies that implement an ERTE based on force majeure grounds and then dismiss any of the affected employees in the six months following the end of the ERTE's implementation period are required to reimburse all bonuses received.
- Companies that implement an ERTE and pay dividends are required to reimburse the full amount of Social Security bonuses.
- Social Security bonuses will be adapted during the months of May and June 2020 for companies that partially recover their activity.
- Travellers from abroad will be required to undertake a mandatory 14-day quarantine.
On 6 May, the Spanish government approved the extension of the state of alarm declaration until 24 May.
On 29 April, the Spanish government announced a plan to reactivate economic activity, which will consist of four phases and will be applied by territory depending on each epidemiological situation:
- PHASE O (from 4 May, 2020)
- Citizens are allowed to go out in certain time frames based on the age of each individual
- Opening of limited commercial premises (e.g. hairdressers) and restaurants with take-away services.
- PHASE 1
- Partial opening of some small business activities.
- The right of assembly in small groups (less than 10 people) is permitted but strict security conditions must be respected.
- Opening of bars/restaurants' terraces with limitations up to 30% of their capacity provided that minimum distance and hygiene measures are respected.
- Opening of hotels, churches, etc. with occupancy limitations.
- PHASE 2
- Opening of interior spaces of bars and restaurants with 1/3 of their capacity.
- Cultural events of less than 50 people are allowed. Outdoors cultural events: maximum 400 people and always seated.
- PHASE 3
- General mobility restrictions are less strict but the recommendation of the use of masks in the streets and on public transport will be maintained.
- Reopening of beaches and pools.
- In restaurants, restrictions on seating and occupancy are less strict.
Each phase of the plan in Spain will last approximately two weeks. Each territory will go to the next phase or will go back to the previous one depending on the epidemiological situation.
On 22 April, the Spanish government approved the following measures:
- The extension of the state of alarm declaration until 10 May 2020.
- The extension of the application term of the following measures until 11 May:
- Recommendation of implementing remote working, and;
- The right of employees who must take care of dependent family members to adapt their working conditions and reduce working hours under specific circumstances due to COVID-19.
- The extension of the categories of unemployment payment beneficiaries to include: (i) employees whose employment relationship has been terminated during the probation period at the request of the Company, as of 9 March, 2020, (ii) employees who have voluntarily terminated their last employment relationship as of 1 March, 2020, because they had a firm commitment to accept another employment contract with a different company but it did not occur as a result of the COVID-19.
- Suspension of deadlines within the scope of the Labour Inspection during the state of alarm declaration (i.e. 24 May).
On 9 April, the Spanish government approved the following measure:
- The extension of the state of alarm declaration for COVID-19 until 26 April.
On 1 April, the Spanish government approved a Royal Decree-Law containing the following measures:
- Temporary employees who have lost their jobs following the declaration of a state of alarm (i.e. since 14 March) may be beneficiaries of an unemployment benefit of around 430 euro per month. To be eligible, the temporary employment contract must have been at least is two months. This unemployment benefit is also subject to the following conditions: (i) the employee cannot be a beneficiary of another benefit or public subsidy; (ii) the unemployment benefit is incompatible with any other minimum income, inclusion income, social salary or similar aid granted by any Public Administration; (iii) the duration of this unemployment benefit will be of one month, extendable if so determined by law.
- Those household assistants who prove lack of activity, reduction in working hours or termination of their contract as a consequence of COVID-19 will be beneficiaries of a public subsidy.
- Self-employed workers and companies may request to deferral payment of Social Security contributions for up to six months, without interest. These deferrals will be subject to certain requirements that will be published by the Ministry of Social Security. The deferral will affect the payment of Social Security contributions where the accrual period is between April and June 2020 in the case of companies and between May and July 2020 in the case of self-employed workers. This regulation will apply provided that the companies' and self-employed workers' activities have not been suspended due to the state of alarm declaration.
- Payment of debts to the Social Security by companies and self-employed workers may be deferred with a 0.5% interest if they were due to be paid between April and June 2020 –provided that the individual had no other postponement in force.
- During the state of alarm, the subsidy for the care of minors affected by cancer or other serious illnesses is compatible with the unemployment benefit for the suspension of a contract or reduction of working time as a consequence of the COVID-19.
On 30 March, the Spanish government issued the following instructions:
- Those employees who cannot benefit from the compulsory paid leave approved by the government from 30 March until 9 April, as well as those workers' representatives who must perform their union duties, have the right to be issued a responsible declaration by the company recognizing that they must provide services in order to guarantee their freedom of movement.
On 29 March, the Spanish Government announced the following measures:
- The closure of the work places of companies that do not provide essential services (i.e. food and beverage services, pharmacy, financial services, etc.) until 9 April 2020.
- Compulsory paid leave from 30 March until 9 April 2020 for all employees who do not provide essential services. Employees must make up these hours that they have not worked (but have been paid for) before 31 December 2020. This does not apply to employees who work remotely, are on sick leave or whose employment contract is suspended for any other reason
- It is also not applicable to companies that are applying or requesting the suspension of their employees' contracts (i.e. ERTE). However, those who have reduced only a percentage of the employees' working hours, will be able to combine both measures).
On 28 March, the Spanish Government published the implementation of the following measures:
- During the state of alarm declaration (i.e. until 24 May 2020), dismissals based on objective causes (i.e. economic, technical, organizational, productive or force majeure) related to COVID-19 will be deemed unjustified. Companies can only terminate an employment contract based on non- COVID-19 related redundancies or disciplinary reasons, or by paying the higher severance payment for 'termination without cause'.
- Temporary contracts that are suspended due to the application of an ERTE based on force majeure or economic, technical, organizational or productive causes will be reactivated once the ERTE expires.
- Companies that apply for a reduction of working hours or a suspension of contracts based on false causes will be sanctioned and must return any unemployment benefits paid to employees during the period of application of the measure.
On 25 March, the Spanish Government approved the following measures:
- The extension of the state of alarm declaration for COVID-19 until 11 April 2020.
- Temporary restriction on the entry of non-resident or Spanish citizens within the Spanish territory during the following 30 days. The only people that can travel to Spain are the following: Spanish citizens that return to Spain, transporters of goods, flight personnel, diplomats or people who prove causes of force majeure.
On 18 March 2020, the Spanish Government published a new Royal Decree-Law that includes employment measures for those sectors and industries affected by COVID-19, including the following:
1. Exceptional measures in relation to the procedures of suspension of employment contracts and reduction of working hours due to force majeure causes:
a. The Royal Decree-Law specifies what are considered force majeure causes (i.e. business impossibility derived from the measures adopted by the government, lack of supplies that seriously impede the development of the Company's activity and infection of any of the employees or if any of them are in quarantine) –the implementation procedure will last up to 5 days, and;
||The Company must submit an application request to the competent Labour Authority together with a report which contains the explanation of the correlation between the proposed measure and the measures implemented by the Government –these documents must be accompanied by the corresponding documents evidencing the allegations presented by the Company. 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.
||The Labour and Social Security Inspectorate may issue a report within a maximum period of five days, if the Labour Authority considers it appropriate (its request is not mandatory).
||The Labour Authority must issue a resolution within five days.
b. If Companies cannot justify these measures based on force majeure causes, they must implement the process based on economical, technical, organisational and productive causes (implementation period has been reduced but it is longer than that based on force majeure) –the implementation procedure will last up to two weeks.
|| Application procedure
||This procedure requires a previous negotiation period with the employee's representatives.
In the event that there are no employees' representatives, the consultation period will be carried out by the most representative unions in the sector in which the Company operates.
If it is not possible to constitute the previous representative commission, consultation will be carried out with up of three employees of the Company democratically elected. In this case, the procedure established in article 41.4 of the Spanish Employment Act will apply.
In any case, the representative commission must be constituted within a maximum period of five days.
||The consultation period with the workers representatives or the representative commission aforementioned shall not exceed the maximum period of seven days.
||The report of the Labour and Social Security Inspection, whose request will be optional for the Labour Authority, will be issued within a maximum period of seven days.
2. Social Security measures:
a. In the case of suspension of employment contracts or reduction of working hours due to force majeure, the Social Security will exempt those companies who have less than 50 employees from the payment of the Company's contributions. For those companies that have 50 or more employees, the Social Security will exonerate 75% of the Company's contributions to the Social Security during this period.
Such exemptions are conditional upon the Company maintaining employment levels in the 6 months following the re-activation of normal activity.
b. Employees who will be entitled to the unemployment benefit, even though they lack the required minimum period of unemployment.
3. Remote working is strongly recommended by the government: Occupational risk prevention obligations will be considered fulfilled by the Labour Inspectorate provided that each employee carries out a self-evaluation.
4. Measures regarding the right of employees who must take care of dependent family members: Such employees (i.e. those with children whose schools have been closed) may adapt their working conditions and reduce working hours under specific circumstances due to COVID-19. Note that the employee is entitled to specify the adaptation of the working hours.
5. 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:
1. General order to close retail commerce, with some exceptions such as food stores, drug stores or communication stores.
2. 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 regards to COVID-19. The main regulations are as follows:
- Measures to preserve employment: Social Security will provide special benefits for employers to enter into in 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 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 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 until 29 March, which is the initial duration of the declaration of state of alarm - even though the Spanish Government has announced that the declaration of state of alarm will be extended until 24 May. Those 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 alarm, except for proceedings on collective conflicts and breach of fundamental rights.
What are employers' obligations in respect of COVID-19?
From 30 March 2020, employees who do not provide essential services are obliged to work from home where feasible. If remote working is not feasible, the employee must take compulsory paid leave from 30 March to 9 April 2020. The employees must then make up these hours that they have not worked (but have been paid for) before 31 December 2020.
On 4 March 2020, the Spanish Ministry for Employment published a practical guide in relation to implications of COVID-19. This guide does not establish specific obligations in relation to COVID-19, but includes recommendations based on mandatory regulations regarding the prevention of occupational hazards and Spanish law.
Moreover, according to said guide, given an emergency situation like the current one (involving 'serious and imminent risk'), companies may adopt or may be affected by the adoption of specific measures such as: (i) stoppage of the activity by decision of the company; (ii) stoppage of the activity by decision of the employees; (iii) recommendations for preventive measures; (iv) the implementation of teleworking as a temporary organizational measure; and (v) the total or partial suspension of the activity, either by decision of the Health Authorities or indirectly due to the effects of COVID-19, due to economic, technical, organisational or productive causes or derived from force majeure. Unless or until COVID-19 regulations come into force, employers should ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like COVID-19 spreading. Such advice may include:
- Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
- Put used tissues in the bin immediately
- Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
- Try to avoid close contact with people who are unwell
We further recommend notifying employees where they can access more information if they are concerned. Detailed information on COVID-19's recommendations and information about the virus may be found on the Spanish Ministry for Health's website or on the Regional Health Departments' websites.
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy and employment. Any such data must also be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data.
In Spain, the Supervisory Authorities have published on 12 March 2020 some guidelines for the processing of personal data in relation to COVID-19, stating that there are sufficient legal grounds in the GDPR [articles (6.1.c, e and d) and (9.2.b,I,g,h and c)] that could be applicable in this context to allow the treatment of such sensitive data, so data protection should not be used to hinder or limit the effectiveness of measures taken by the authorities, especially health authorities, during the fight against the pandemic.
Hence, based on labour and occupational risk prevention regulations, employers may process the necessary data to guarantee employee's health and safety, and to avoid contagions within the company and/or working places.
In any case, the processing of personal data, even during this health emergency situation, must still be carried out in accordance with the regulations on the protection of personal data.
In accordance with this new guidelines published by the Supervisory Authorities, 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 not: (i) visited those countries considered "red zones" and; (ii) been in contact with anyone that has the virus, based on the legitimate interests pursued by companies, provided that GDPR principles are observed, including:
- Keeping the data obtained for a limited period of time (storage limitation);
- Minimising the collection of data to the name and surname of the specific employee, and the country where they have been in the last month, and/or if they have been in contact with someone infected;
- Allowing access to a limited number of people; and
- Protecting the data with adequate security measures.
Based on this, for Spanish employers it would be possible to ask its employees if they have the virus. Additional measures, such as checking the employee's temperature before allowing them to enter the workplace, would only be permitted if no other additional measures (e.g. remote working) are available, based on proportionality criteria.
What should employers do if an employee is absent or infected?
Infected employees or employees who have been exposed to COVID-19
If any employee has been exposed to or infected by COVID-19, companies must immediately inform the Spanish competent authorities, who will implement the protocols provided for this situation, such as isolation of the workplace, contact those persons related to the affected person, and so on. Competent authorities will also inform the company how to proceed.
In any case, companies must inform those employees/customers/providers that have been in direct contact with the infected employee or with the employee who has been exposed to COVID-19. Spanish regulations establish that in the event that there is a serious and imminent risk at work, the Company is obliged to inform all employees about the existence of said risk. In our view, a communication via e-mail would be sufficient.
Any time that employees are unable to render services due to an absence (e.g. quarantine) or 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,
Potentially Infected Employees
In the event that the company becomes aware that an employee has been in direct contact with a person infected by COVID-19, the employee should be asked to undergo a voluntary medical examination. In case an employee confirms that he has been infected, such employee can be required to immediately abandon the work place.
In addition, the potentially infected employee may be recommended to provide services from their home (i.e. telework) and monitor their health, in order to avoid contagion in the company's workforce. The company can also offer telework to all staff if it wishes. If an employee agrees, a remote working agreement should be entered into before they commence teleworking.
Please note that work places of companies that do not provide essential services will be closed from 30 March until 9 April 2020.
Refusals to work or travel
As above, pleasenote that employees of companies that do not provide essential services (e.g. food and beverage suppliers, financial services, pharmacies, etc.) are prohibited from going to the work place between 30 March and 9 April 2020.
If the employee provides essential services, the company can use its management power to force employees to work and render services in person at the workplace. This order has a presumption of legality, so in the beginning the employees would have to comply and, if appropriate, subsequently make a claim. However, please note that Spanish Government has strongly recommended that companies should allow teleworking for those employees whose functions can be carried out from home.
The risk of this approach is that, if employees consider that the performance of their duties carries a serious and imminent risk to their lives or their health, they can challenge the employer's decision before the social jurisdiction and claim compensation for damages (based on the provisions of the Law on Prevention of Occupational Risks). The Courts will assess the existence of a "serious and imminent" occupational risk after analysing whether the following three requirements concur simultaneously: certainty that damage will take place, severity of damage and immediacy of the risk situation.
Moreover, if rendering services at the company's premises involves a serious and imminent risk of infection by COVID-19, the employees can stop their activity and leave immediately the workplace. Likewise, the employees' representatives may agree the interruption of the activity. In that case, the company cannot retaliate against the employees.
We further note that, the Government has declared a global closure of schools and Universities until 24 May 2020 as per the extension of the state of alarm that was approved by the Spanish Parliament. In this scenario, those employees that must take care of their children – thus preventing them working – may adapt their working conditions and reduce working hours up to 100% under specific circumstances resulting from COVID-19.
What are employers' obligations where offices are partially or fully closed?
If the Company decides to suspend employment contracts based on force majeure causes or an official health alert, or economical, technical, productive or organizational reasons arising from the situation, the Company will not be required to pay the corresponding salaries, provided that the Company follows the specific procedure for suspension of contracts and there are real causes. In this sense and for companies under force majeure, those companies that have less than 50 employees will not be required to pay the company's Social Security contributions. Those companies that have 50 or more employees will be required to pay 25% of the Company's Social Security contributions during this period. This is conditional upon the companies' maintaining their employment levels for 6 months following the restart of their normal activities; and
If the Company 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.
Where can employers and employees access local and national advice?
Additionally, Spanish Authorities recommend that employees should only travel when it is strictly necessary. Consequently, in case of business trips the health area of the companies or the occupational hazards prevention service must assess the specific risk of the trip and the possible contact with cases of COVID-19, and will provide the appropriate recommendations, following the guidelines and recommendations made by the Health Authorities.
Last reviewed 6 May 2020