In view of the exceptional situation of a state of alarm in which we find ourselves, it is necessary to inform about the existing legal and labor tools to face the workforce imbalances that may be generated by the repercussions of the consequences of such a state of alarm on employment and business activity.
First of all, we must point out that RD 463/2020, of March 14, which declares a state of alarm due to the COVID-19 crisis, allows the necessary travel to work, without prejudice to the incentive of labor flexibility measures in the provision of services that avoid as much as possible travel to the workplace.
Secondly, we must mention that the rigidity of the usual work tools included in the labor regulations is incompatible with the solution to the labor problems generated in a totally extraordinary situation such as the one we are in, and changing in a very short period of time, although we can use them, with the requirements and nuances mentioned below:
Labor measures:
Teleworking: the objective is to organize work in such a way as to reduce the number of exposed workers, establishing rules to avoid and reduce the frequency and type of person-to-person contact. It requires agreement with the employee. Its effectiveness obviously depends on the characteristics of the workplace.
2. Granting of vacations: communication to the employee of the enjoyment of vacations accrued or pending accrual, adapted to the new circumstances that have arisen. This is an exceptional situation, since vacations must be communicated at least 2 months in advance. It would also be necessary to consult the collective bargaining agreement applicable to each particular company.
3. Redistribution of the annual working day: requires agreement with the employee. The ultimate purpose is that the hours / days not worked can be recovered at a later date.
4. Paid leaves of absence.
5. Unpaid leave: requires agreement.
6. Suspension of the employment contract by agreement between both parties: requires agreement and does not entitle to unemployment benefits.
7. Suspension of employment contracts (ERTE) due to economic, technical, organizational or production causes (temporary causes): requires a procedure consisting of a notice period of 7/15 days maximum, depending on the existence or not of workers’ representatives in the company, and a subsequent consultation period of 15 days maximum with the workers’ representatives or the representation created ad hoc.
At the end of the consultation period, the employer notifies the labor authority and the workers’ representatives of the employer’s decision, regardless of the existence of an agreement or not, and then notifies the affected workers individually.
The measure will take effect as of the date on which the employer has communicated the aforementioned business decision to the labor authority.
The procedure and its deadlines (notice and consultation period) could be reduced in time, if there is prior agreement with the workers/workers’ representatives.
It is foreseeable that new developments will be issued in the near future that will temporarily reduce the deadlines established for the ERTES based on the current state of alarm.
The situation gives entitlement to unemployment benefits.
8. Suspension of employment contracts (ERTE) due to force majeure (temporary cause): The procedure will be initiated by means of a request from the company addressed to the competent labor authority, accompanied by the means of proof it deems necessary, and simultaneous communication to the legal representatives of the workers.
The competent labor authority will request a mandatory report from the Labor and Social Security Inspection and will carry out or request as many other actions or reports as it deems necessary, issuing a decision within a maximum period of five days from the date of entry of the request in the registry of the competent body for its processing.
In the event that, after the proceeding has been conducted, the existence of the alleged force majeure has not been verified, the appropriate procedure for the suspension of contracts or reduction of working hours may be initiated, for economic, technical, organizational or production reasons, in accordance with the provisions of the preceding number.
The situation gives entitlement to unemployment benefits.
9. Termination of employment contracts due to individual objective dismissal or redundancy plan: in the event that the economic, technical, organizational or production causes have become structural causes.
Objective dismissal requires an individual communication stating the economic, technical, organizational or structural production causes.
The termination ERE requires a procedure similar to the suspensive ERTE (prior notice and consultation period), with differential temporal nuances.
16 March 2020