In the event of a business stoppage and temporary closures of workplaces, there are different tools in Spanish labour legislation that provide for how to deal with such situations.
With the arrival of the first cases of people affected by the coronavirus in our country, many employers are wondering what would happen if Spain had to face a situation like the one Italy is suffering.
It should be remembered that, in the neighbouring country, the government and health authorities in various regions have decreed, among other measures, the closure of schools, the cancellation of massive events or the preventive isolation of populations to avoid the spread of the disease.
From the labour point of view, the first reflection that should be made is that, unless a collective agreement provides for something different, a company is only obliged to pay wages when the impossibility of providing the services is attributable to the company itself.
Based on this premise, in cases where employees are unable to work due to causes beyond the company’s control, the law allows contracts to be suspended on the grounds of force majeure as set out in Article 45.1(i) of the Workers’ Statute. Force majeure will be considered to exist if an unforeseeable event occurs or if, even if foreseen, it is unavoidable.
For the application of this measure it is not required that the company is in crisis or that there are additional causes (such as economic, technical, organizational or production causes) but the causes of force majeure must have occurred for reasons beyond the control of the company.
Examples validated by the courts could be a flood, fire or explosion at a workplace or the arrival of a pest in the agricultural sector. In the case of a health alert or epidemic in which the government established precautionary measures that did not allow workers to enjoy freedom of movement or even had to remain in isolation, the requirements of unpredictability and inevitability of a suspension by force majeure would be met.
To this effect, if a company has to face this situation, it will be the Labor Authority that will have to declare the suspension of the contracts due to force majeure of the workers. The company will have to present a request before said body to confirm the force majeure, providing the appropriate proofs and justifications, and the latter will have to issue a resolution within a maximum period of five days. Similarly, the company will also be obliged to inform the workers’ representatives of the start of the procedure for suspending contracts due to force majeure.
If the Labour Authority were to declare force majeure, the company could suspend the workers’ contracts and stop paying their salaries. The time that the contracts could be suspended will depend on the time needed to reactivate the normal activity of the company. The workers, during this period, would access unemployment by consuming benefit time.
It should be remembered that, in the event of failure of the suspension due to force majeure or other measures that we will point out later, a temporary suspension or ERE procedure could always be initiated if economic, technical, organizational or production causes are accredited.
Another possible alternative to take into consideration would be for the company to decide that the days of non-attendance would be at the expense of its workers’ holidays. However, this alternative implies that the vacation period is fixed unilaterally by the employer and therefore an express agreement by the workers accepting the completion of their vacation in a given period would be necessary, in addition to having to observe the possible limits set out in respect of them in the applicable collective agreement.
It should be remembered that in the event that the vacation schedule has already been agreed upon, it is generally not possible to modify it, so it is advisable to reach a possible agreement with the employees to change it, respecting, in any case, the two-month period (or the period established by the agreement) that the regulations give the worker to know his vacation days.
Other additional measures to be offered by the company, in the event that workers cannot travel to the workplace due to health recommendations (or obligations), could be the reduction of salary for the days not worked or the express agreement with the worker for the recovery of those hours in other periods. In any case, non-attendance would be justified and therefore not punishable, but the absence of services also entails the absence of accrual of the worker’s salary.
Related to the previous point, it is also very common that in certain companies workers have “bags of hours“. For this purpose, the company could discount or add to this bag the hours not worked in order not to penalize the worker’s salary.
A last resort, and no less effective, would be the possibility of doing the work from home as long as the company’s activity allows it. Many companies have already established this system of teleworking for certain profiles and on the basis of certain parameters (days, shifts, periods, etc.) so that their participation in a possible period of crisis would not entail excessive inconveniences.
For those companies that have not yet implemented it, it can be a good incentive to start to protocolize it, in case of a possible urgent application, in order to avoid other more punitive measures for the worker. Let us remember that in the field of teleworking there are also obligations in terms of Risk Prevention, control of certain computer and technological systems, agreements to be established regarding the economic costs of internet or telephone or the compliance with the LOPD, and that these obligations must be fulfilled and carried out in order not to have labour problems in the future with the workers.
A last minute note published by the Secretary of State for Social Security and Pensions on 26 February under the name of Criterion 2/2020 and, related to this issue, is that the periods of preventive isolation suffered by workers as a result of the coronavirus will be considered as a situation of temporary incapacity derived from common illness.
Therefore, in the event that specific workers suffer obligatory preventive isolation periods as a result of the application of the protocols established by the Health Authorities with respect to this type of virus, their situation will be equated to a situation of leave due to common illness with its corresponding benefits. It should be remembered that from the 16th day of sick leave, the Social Security takes over 60% of a worker’s salary, taking into account its regulatory base, and from the 21st day, 75%.
From the AddVANTE Labour Management department, we remain at your disposal for further information or to resolve any doubts that may arise in relation to this article.