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Coronavirus - Workers' Rights

Info from Royal Decree published the 22nd of April in green.

Info from Royal Decree published the 8th of April in purple.

Info from Royal Decree with 50 Alleviating Measures, published 1.4.2020, in orange.

Update 28.3.2020 New Measures Re Dismissals, ERTE etc.

Those ill with the coronavirus, or put in preventive isolation by the health authorities because they have been in contact with a person that tested positive, or because they returned from a zone where there was a high concentration of cases, will be entitled to sick pay that will be established as if for a work-related illness or accident at work, exclusively for economic reasons. Meaning that you will be entitled to 75% of your wages, as of day one of your ‘baja’. The Seguridad Social will pay for your sickpay. In practice this means that your employer continues to pay your wages, at 75%, and that they will get a discount on the social security contributions up to the amount of the sick pay. The same is true for those that are confined to their villages and thus cannot go to work, are not able to carry out their work activities and are not eligible for any other benefits. They need to apply with their Town Hall for a certificate accrediting the situation of confinement, and from their employers a certificate that accredits that they cannot work from home. Employees working in non-essential activities will need to be done ‘de alta’ again during the period of obligatory paid leave during the tightened lockdown period, when applicable. For Autonomos their ‘baja’ will last for as long as the confinement does. Autonomos are entitled to 75% of the ‘base reguladora’  that their social security contributions are based on.

Some convenios guarantee 100% pay during sick leave because of work-related illness or accident at work, but this 25% complement will not be paid in this specific case, because the situation is exclusively recognised as such for economic reasons. That is also the reason that you need to get your ‘baja’ from your GP and not from the Mutua.  ‘Baja’ paperwork that cannot be arranged for straight away, will be recognised with retro-activity when it is possible to present to your employer. But if you reported sick with COVID19 symptoms and later appears that it was a regular cold or case of the flu, you will not be entitled to receive this special sick pay, but the regular one for ‘common contingencies‘ instead.

With regards to the State of Alarm and the containment measures the government has implemented, there are measures in place to alleviate the economic consequences, for both employees and self employed Autonomos. More info, mainly for Autonomos, HERE.

 

Social Security Contributions Waiver for ERTEs

The Royal Decree Law from the 18th of March establishes, in the first place, that companies that carry out a Temporary Employment Regulation File (ERTE) due to COVID-19 – whose requirements are made more flexible – will be exempt from paying the fees to Social Security, which would correspond to the workers affected by said ERTE. It will apply to both workers with a suspension of their contract and those who see their hours reduced by the ERTE. You will continue to be employed, so not entitled to redundancy fee.

We have some information on ERTE regulations on our website. For the reduction in hours or suspension of the full amount of contracted hours, you would be entitled to unemployment benefits ‘paro’ to compensate. You do not have to have worked for at least one full year, like with regular ‘paro’, but you must have been ‘de alta’ with the Seguridad Social on the date the Royal Decree came into force, so since a date before the 18th of March. The amount you will receive will be based on your average wages of the last 180 days (or less if you don’t have a work history of 180 days). One of the conditions for this specific ERTE regulation is that the employer guarantees to continue the contracts for the employees for at least 6 months after the State of Alarm ends and employees come back to work again.

This exemption of having to pay social security contributions for employers, will not have an impact on workers, since that period will be listed as effectively ‘cotizado’ for all purposes. And any regular ‘paro’ entitlement you might have, will not be negatively affected by the period of time you receive this special paro now.

Preparing an ERTE and getting it approved, takes time, but once approved, your ‘paro’ entitlement will start on the date the State of Alarm became effective, so the 15th of March 2020.

Those affected by an ERTE, do NOT have to make an appointment with the Employment Agency, their employers should take care of everything. Those whose contracts have been terminated, DO need to make an appointment and can fill out a pre-registration form, online or to be sent by ordinary mail. Please check this link from SEPE regularly, for updates.

COVID-19 LINK SEPE

The new Royal Decree provides the option of  a ‘split ERTE’ for companies that have had to suspend the contracts for certain employees, while others have had to come to work/remain working, enabling employers to still benefit from the special ‘fuerza mayor’ conditions for those remaining on ERTE.

Info on split ERTEs and partial ‘force majeure’ ERTEs till 30.6.2020

Can all businesses apply?

“Contract suspensions and reductions in working hours that have their cause in a direct loss of activity as a result of COVID-19, including the declaration of the state of alarm, which implies suspension or cancellation of activities, temporary closure of public affluence premises, restrictions on public transport and, in general, of the mobility of people and/or goods, lack of supplies that seriously impede the continuation of the ordinary development of the activity, or urgent and extraordinary situations due to contagion of the workforce or the adoption of preventive isolation measures decreed by the health authority, which remain duly accredited, they will be considered as coming from a situation of force majeure and will be able to make use of the special ERTE regulations.”

 

What about working from home ‘teletrabajo’?

This an obligation for employers to facilitate, if technically and reasonably possible and if the effort to organise this is proportionate. Practical example, if you could carry our your work from home, but the company doesn’t have enough laptops available and you offer to use your own, they need to facilitate this.

Non-compliance with this obligation to work from home where possible, could be considered an infraction of the Law for Prevention of Risks at Work and fines for employers are extremely severe.

Extension of the period during which working from home is the established preferred method of working. To last for 2 more months after the State of Alarm ends.

 

What if my employer asks me to carry out different tasks, during the State of Alarm?

They are entitled to do that, as long as you are not asked to work more hours, and your wages remain the same.

 

What if my employer has told me to use up my holidays?

Two different scenarios. If you are asked to apply for holidays and sign for it, then no, you are not obliged to sign an application for holidays you do not want. But if your employer informs you you have to take holidays during the State of Alarm, then you are in your right to file a ‘demanda’ within 20 days, because your employer hasn’t given legal notice of 2 months.

 

While on ERTE, does my holiday entitlement grow?

No, for as long as an ERTE is in place, your holiday entitlement doesn’t grow. So if the ERTE lasts for 6 weeks, for this calendar year, instead of your regular entitlement, you will have less paid holidays.

 

While on ERTE, can I still receive the 100 euros/month IRPF discount for children under 3?

That depends, if you are on a part-time ERTE you can, but if you are on a full-time ERTE you cannot, as to qualify you need to be in a situation of employment. When your work hours are 100% suspended, you are effectively unemployed.

 

What if my employer terminates my temporary contract early?

This would be a dismissal and would entitle you to regular unemployment benefits ‘paro’ or unemployment ‘subsidio’ depending on your work history.  And you would be entitled to redundancy fee as well. As many temporary contracts are not valid as such under labour law, you might want to consider contesting your dismissal by filing a ‘demanda’ within 20 days.

 

What if my temporary contract ends naturally during the State of Alarm and I don’t have sufficient work history to be entitled to unemployment benefits or unemployment subsidy?

There is an exceptional unemployment subsidy available for those with a temporary contract of at least 2 months, valid on the date the State of Alarm was called, and with an end date during the State of Alarm. Income tested, like all unemployment subsidies and not compatible with any other. The amount will be 80% of the IPREM (approx. 430 euros) for one month, possibly longer if so established by Royal Decree. Update: you can apply with SEPE for this special subsidy as of May 5th, 2020. 

 

What if I was supposed to be called back to work, but my employer won’t for as long as the State of Alarm lasts? Re those on ‘fijo discontinuo’ contracts or repetitive seasonal contracts.

This would be a dismissal as well, if you’re on a ‘fijo discontinuo’ contract or get temporary contracts but for the same period every year.

Text amended in RD from 22.4.2020, now as follows.

“The application of extraordinary protection measures by unemployment for permanent-discontinuous workers and those that carry out fixed and periodic works that are repeated on certain dates. The following terms:
a) In the event that the company in which they provide services has adopted the decision to suspend the contract or reduce the working day as a result of the containment measures, affected workers may benefit from the measures
established in section 1 of this article (ERTE). Discontinuous permanent workers and those who carry out permanent work and work that is repeated on certain dates, that are in the period of productive inactivity, and therefore, waiting for the arrival of the date in which their appeal and effective reincorporation would proceed if there was no COVID19 crisis, may also benefit from the measures provided in the section 1 (ERTE) of this article.

b) Workers, without being in the situation of the section above, whose service provision is interrupted as a result of the impact of COVID-19 during periods that, in the event that said extraordinary circumstance, would have been of activity, and as a consequence of that they become beneficiaries of unemployment benefit, they may return to receive it, with a maximum limit of 90 days, when they are again in a situation of legal unemployment. To determine the period that, if concurred this circumstance, would have been of work activity, will be taken the period actually worked by the worker during the previous calendar year based on the same employment contract. In the case of the first year, the periods of activity of other comparable workers in the company.
This measure will be applied to the same consumed right, and will be recognized ex officio by the managing entity when the interested party requests its resumption.

c) The workers who prove that, as a consequence of the impact of COVID-19, have not been able to resume their activity on the date that was planned and were beneficiaries of benefits at that time,  will not see suspended the right to the benefit or subsidy that they were receiving.
If on the date they should have rejoined the activity, they were not receiving unemployment benefits for having exhausted them, but can prove the required period for obtaining a new entitlement to unemployment benefits, a business certification of the impossibility of reinstatement will constitute a legal situation of unemployment for the recognition of the right to said benefit.
To the working people referred to in this paragraph will be the application of the replacement of the right to the benefits provided in letter b) of this article (90 days).
d) Workers who have had their activity interrupted and those who were not able to rejoin it as a consequence of COVID-19 and they lacked the period of quoted occupation necessary to obtain the benefit for unemployment, they will be entitled to a new contributory benefit, which may perceived until the date of the incorporation into their job, with a maximum limit of 90 days. The monthly amount of the new benefit will be equal to that of the last monthly payment of the unemployment benefit received, or, in its case, to the minimum amount of the contributory benefit. They will have the same right as those who during the crisis situation derived from COVID-19 exhaust their unemployment benefits before the date of incorporation into their job and lack sufficient contributions for recognition of a new right, in which case, the business certification of impossibility of reincorporation will constitute a new legal unemployment situation. In this case, the provisions of letter b) of this section will not apply to them when proving a new legal unemployment situation.”

Please contact the Employment Agency in your area for more info if you think the above could fit your situation.

 

What if my employer has sent me home, but won’t pay my wages and has arranged for my ‘baja’ with the Seguridad Social? 

This would also be considered a dismissal, even though your employer doesn’t recognise it. Termination of the working relationship, would be considered as a dismissal by a judge, even if there is no formal letter to advise you of your dismissal.  You have 20 days to appeal.

 

What if my employer wants me to get a ‘baja’ from my doctor?

Ehm, you cannot arrange for one, the doctor is the one that issues it, when they find you ill. And you can only avail of the special ‘coronavirus’ sick pay as mentioned in the first paragraph, if you are indeed sick with the virus, or have been put in isolation by a medical professional. And you would be the one losing out, as you will be paid less than your regular wages.

 

What about when I need to adapt my work schedule because my children can’t go to school or because I need to take care of an elderly family member that can’t go to day-care now?

You are entitled to a temporary adjustment of or decrease in your working hours (reducción voluntaria de jornada), for reasons of ‘conciliación familiar’. To take care of children, grandchildren, parents or siblings of your own or your partner’s. Ordinarily, you would have to inform your employer in writing, giving 15 days notice, but in these extraordinary circumstances this has been reduced to 24 hrs. For these cases, the government has not yet announced any alleviating measures for the loss of income re the hours you work less. You are also not entitled to ‘paro’ for the hours you work less. Beware of employers that want to arrange for an ERTE for these hours instead, ‘selling’ it to you as a way to get the special ‘paro’ as this would be considered fraud.

 

What about when I don’t feel safe at work, I don’t think my boss is taking the health risk seriously?

You are entitled to stay home from work if at your workplace there exists a severe and certain risk of being infected with the coronavirus for lack of prevention measures. You need to motivate your reasons for not appearing at your work place in writing, stressing the health risk. You can also report your employer, anonimously, to the Labour Inspection Authorities.

 

Note: where we mention ‘demanda’ or ‘appeal’ we recommend visiting a workers’ union for guidance.  There is no guarantee your employer’s decision will be undone, but filing a ‘demanda’ or appeal your dismissal may result in a higher redundancy, where applicable, for instance. You do not have to be a member to ask for their help, but they might ask for a small contribution. CCOO and UGT are big unions in Spain, you can find a listing of offices on their respective websites.

With regards to the windows to file a demands or appeal, they will suspended during the State of Alarm, so where it states 20 days, you will have 20 working days after the State of Alarm ends.

Similar with the window to apply for unemployment benefits. Applications outside the regular window will not have a negative effect on your entitlement.

 

What about having my work contract terminated during the trial period, or if I left a job to start another one that never materialised?

The measures adopted on the 21st of April complement those that have been approved during the state of alarm, responding to workers who had been left without coverage. Among them, those who saw their contract terminated in a trial period from March 9, no matter if they voluntarily left their previous job or were in a situation of legal unemployment. The same goes for those who voluntarily terminated their contract from March 1 for having another firm job offer that did not materialize due to the pandemic. In both cases they will be entitled to unemployment benefits. In the latter situation, the company will have to confirm in writing that there was indeed such a job offer that fell through as a result of the COVID-19 crisis. Note from CAB: the Royal Decree only mentions that these workers will now be considered to be in a situation of legal unemployment, it doesn’t give any guarantees re entitlement to special unemployment benefits, so whether you can apply will depend on your own work history and built-up entitlement.

 

Availability of pension plans in case of unemployment or cessation of activity derived from the situation of health crisis caused by COVID-19.
“During the period of six months from the entry into force of the Royal Decree463/2020, of March 14, declaring the State of Alarm for the management of the health crisis situation caused by COVID-19 the participants in the plans for pensions may, exceptionally, give effect to their consolidated rights.”  As I understand it, you will be allowed, exceptionally, to ‘dip into your pension pot’ for amounts not higher than your regular monthly net income. Once applied for and the relevant documentation submitted as well, payment should take place within 7 workdays. Please ask your gestor or the Seguridad Social for further info. The Tax Office has confirmed that the payments will be treated as ‘income from work’ like regular pension payments.

In the Royal Decree from the 22nd of April they elaborate the conditions, but the subject is not within CAB’s remit to advise on. As mentioned above, please ask your gestor or the Seguridad Social.

LINK TO FAQS ON SEPE WEBSITE – IN SPANISH

Disclaimer: we are not qualified to give legal advice, we can only provide general information based on our knowledge of the law. For this article, the sources used are the relevant Royal Decree, the Statute for Employees and publications from labour law specialists. Each situation needs to be evaluated individually by the relevant authorities.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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