Royal Decree-Law: labour measures COVID-19
RDL Law 8/2020, March 17, on urgent extraordinary measures to deal with the economic and social impact of COVID-19
Today, March 18, 2020, has been published the Royal Decree-Law (RDL) 8/2020 of March 17, on urgent extraordinary measures to address the economic and social impact of the COVID-19.
From a labour point of view, the labour market has received one of the greatest impacts in recent years (after, of course, the health field), so a series of measures of different kinds have been published, which aim to reduce or cushion the effects that the containment of COVID-19 is causing in our labour market.
As regards the measures adopted, it should be noted that they come into force as soon as they are published (today), and that their application will remain in force for one month – unless an extension is declared – and unless a specific time limit is set for any of the measures.
We shall now summarise the most important measures in blocks, limiting ourselves to the labour field and placing special emphasis on the limitations or conditions to which the aforementioned measures are linked, which were not announced in the various communications made by the Government yesterday.
Preferential nature of distance working
Priority is given to teleworking as a way of carrying out the labour benefit during the crisis, in order to maintain activity, in any situation of cessation, and the company must adopt the technical measures that are reasonable for its facilitation.
For the above purposes, a risk self-assessment model is provided on an exceptional basis to be completed voluntarily by the workers who make use of this system, thus exceptionally considering the risk prevention regulations to be correct.
Right to adapt the timetable and reduce the working day
Employees who can prove that they have a duty of care towards their spouse or partner, as well as towards family members by blood up to the second degree of the worker, will have the right to adapt their working day and/or reduce it (up to 100%), when there are exceptional circumstances related to the actions necessary to prevent the community transmission of the COVID-19.
These exceptional circumstances will be understood to exist when the presence of the working person is necessary to care for any of the persons indicated in the previous section who, for reasons of age, illness or disability, need personal and direct care as a direct consequence of the COVID-19. Likewise, exceptional circumstances will be considered to exist when there are decisions adopted by the government authorities related to the COVID-19 that imply the closure of educational centres or of any other nature that provide care or attention to the person in need of them. Exceptional circumstances requiring the presence of the working person will also be considered to exist when the person who has hitherto been responsible for the direct care or assistance of the working person’s spouse or relative up to the second degree is no longer able to do so for justified reasons related to the COVID-19.
The right provided for in this article is an individual right of each of the parents or carers, which must be based on a co-responsible distribution of the obligations of care and the avoidance of the perpetuation of roles, and must be justified, reasonable and proportionate in relation to the situation of the company, particularly in the event that there are several workers accessing it in the same company.
The reduction in the special working day must be notified to the company 24 hours in advance, and may reach one hundred percent of the working day if necessary, without this implying any change in the nature of the rights and guarantees established in the regulations for the situation provided for in Article 37.6 of the Workers’ Statute.
In the case of reductions in working hours of up to 100%, the worker’s entitlement must be justified and reasonable and proportionate in view of the situation of the employer.
In the case established in the second paragraph of Article 37.6, it will not be necessary for the family member requiring care and attention not to carry out paid activity.
Right to novation of the existing adaptation of working hours or reduction
In the event that the working person is already enjoying an adaptation of their working day by conciliation, or a reduction in working hours due to child or family care, or any of the conciliation rights provided for in the labour law, including those established in article 37 itself, they may temporarily waive it or have the right to have the terms of its enjoyment modified, provided that the exceptional circumstances provided for in the first section of this article are met, the request should be limited to the exceptional period of duration of the health crisis and should be adapted to the specific needs of care to be provided by the worker, duly accredited, as well as to the organisational needs of the company, and it should be presumed that the request is justified, reasonable and proportionate unless there is evidence to the contrary.
Extraordinary benefit for cessation of activity for those affected by the declaration of the state of alarm for the management of the health crisis situation caused by COVID-19
Exceptionally, and for a period limited to one month from the declaration of the state of alarm, or until the last day of the month in which the state of alarm ends if it is extended by more than one month, self-employed workers or those whose activities are suspended as a result of the provisions of the aforementioned Royal Decree, or, otherwise, when their turnover in the month prior to that for which the benefit is requested is reduced by at least 75% in relation to the average turnover for the previous six-month period, shall be entitled to the extraordinary benefit for cessation of activity provided that they meet the following requirements
- To be affiliated and registered, on the date of the declaration of the state of alarm, with the Special Social Security Regime for Self-Employed or Autonomous Workers or, where applicable, with the Special Social Security Regime for Sea Workers.
- In the event that their activity is not directly suspended under the provisions of Royal Decree 463/2020, of 14 March, they must prove that their turnover has been reduced by at least 75% compared with the previous six-month period.
- Be up to date with the payment of Social Security contributions. However, if on the date of the suspension of the activity or the reduction of the invoicing this requirement is not fulfilled, the managing body will invite the self-employed person to pay the contributions due within a non-renewable period of thirty calendar days. The regularization of the overdraft will produce full effects for the acquisition of the right to protection.
The amount of the benefit regulated in this article shall be determined by applying 70 per cent to the regulatory base, calculated in accordance with the provisions of article 339 of the General Social Security Act, approved by Royal Legislative Decree 8/2015 of 30 October. Where the minimum contribution period for entitlement to the benefit is not accredited, the amount of the benefit shall be equivalent to 70% of the minimum contribution base under the Special Social Security Scheme for Self-Employed Workers or, where appropriate, under the Special Social Security Scheme for Seafarers.
The extraordinary benefit for cessation of activity regulated in this article shall have a duration of one month, being extended, if appropriate, until the last day of the month in which the state of alarm ends, in the event that this is extended and has a duration of more than one month. The time of its receipt shall be deemed to be the period of contribution and shall not reduce the periods of severance pay to which the beneficiary may be entitled in the future.
The collection will be incompatible with any other benefit of the Social Security system.
Working members of worker cooperatives who have opted to be classified as self-employed under the corresponding special regime shall also be entitled to this extraordinary benefit, provided that they meet the requirements set out in this article.
Extraordinary measures regarding contributions in relation to the procedures for the suspension of contracts and reduction of working hours (only) due to force majeure related to the COVID-19
In cases of suspension of contracts and reduction of working hours authorized on the basis of temporary force majeure linked to COVID-19, the Social Security Administration will exempt the company from payment of the company’s contribution, as well as the contributions for joint collection, for the duration of the period of suspension of contracts or reduction of working hours authorized on that basis when the company, on 29 February 2020, had fewer than 50 workers registered with Social Security. If the company has 50 or more employees registered with the social security authorities, the exemption from the obligation to pay contributions will be 75 % of the company’s contribution.
This exoneration will not have any effect on the working person, and this period will continue to be considered as effectively contributing for all purposes, without the provisions of Article 20 of the General Law on Social Security being applicable.
The extraordinary measures in the field of employment provided for in this Royal Decree-Law shall be subject to a commitment by the company to maintain employment for a period of six months from the date of resumption of activity.
Exceptional measures in relation to the procedures of suspension and reduction of working hours for economic, technical, organisational and production reasons
In the event that the company decides to suspend a contract or reduce the working day for economic, technical, organisational and production reasons related to the COVID-19, the following specialities will be applied, with respect to the procedure set out in the regulations governing these cases
In the event that there is no legal representation of the workers, their representative committee for the negotiation of the consultation period will be made up of the most representative trade unions of the sector to which the company belongs and with the legitimacy to be part of the negotiating committee of the applicable collective agreement.
The committee will be made up of one person from each of the unions that meet these requirements, with decisions being taken by the corresponding representative majorities. If this representation is not formed, the committee will be made up of three workers from the company itself, elected in accordance with the provisions of Article 41.4 of the Workers’ Statute.
In any of the above cases, the representative committee must be set up within a non-renewable period of 5 days.
The consultation period between the company and the workers’ representative or the representative commission provided for in the previous point must not exceed the maximum period of (7) seven days.
The report of the Labour and Social Security Inspectorate, whose request will be optional for the labour authority, will be evacuated within a non-renewable period of seven days.
In the ERTE’s for objective reasons, the exoneration of employer’s quota foreseen for the processes followed by Force Majeure will NOT be applicable.
Unemployment in the event of suspension of employment due to force majeure
Whether the suspension is due to force majeure or for objective reasons, the following measures are provided for in respect of unemployment benefit
- Recognition of unemployment benefit even if the minimum period of contributory employment required for this purpose is lacking.
- The time during which the unemployment benefit is received at the contributory level which is the immediate cause of the aforementioned extraordinary circumstances shall not be counted for the purposes of the maximum periods of receipt established.
- The right to this benefit exists whether, at the time of the adoption of the business decision, a previous right to unemployment benefit or subsidy has been suspended, or whether the minimum period of contributory occupation to cause the right to contributory benefit has been missed, or no previous unemployment benefit has been received.
- In any case, a new right to contributory unemployment benefit will be recognized, with the following specialties regarding the amount and duration
- The regulatory basis of the benefit shall be that resulting from computing the average of the bases of the last 180 days of contributions or, failing that, of the period of time immediately prior to the legal situation of unemployment, worked under the protection of the labor relationship affected by the extraordinary circumstances that have directly caused the suspension of the contract or the reduction of the working day.
- The duration of the service shall extend to the end of the period of suspension of the employment contract or temporary reduction of the working hours for which it is provided.
- Unemployment benefits received by discontinuous permanent workers and by those who carry out permanent and periodic work that is repeated on certain dates, who have had their employment contracts suspended as a result of the impact of the COVID-19 for periods that, if this extraordinary circumstance had not occurred, would have been of activity, may be received again, with a maximum limit of 90 days, when they are legally unemployed again.
In order to determine the period of time during which the worker would have been working if this circumstance had not occurred, the worker will be considered to have worked during the previous calendar year on the basis of the same employment contract. In the case of the first year, the period of activity of other comparable workers in the company will be taken into account. This measure will be applied to the same right consumed, and will be recognized ex officio by the Management Entity when the interested party requests its resumption.
- If, for reasons of limited mobility resulting from the alarm situation affecting the operation of public services whose actions affect the management of unemployment protection, the submission of initial registration or resumption of the benefit and unemployment benefit made outside the legally established deadlines does not imply that the duration of the corresponding benefit is reduced.
- Suspend the application of the provisions of the second paragraph of Article 276Extension of unemployment benefit and annual income declarationIf,
for reasons of limited mobility arising from the alarm situation or affecting the operation of public services whose actions affect the management of unemployment protection, the State Public Employment Service and, where appropriate, the Social Institute of the Navy, may take the following measures:
- 2 of the consolidated text of the General Law on Social Security, authorising the managing body to extend entitlement to unemployment benefit ex officio in cases where entitlement has been extended by six months, so that failure to apply will not result in interruption of the receipt of unemployment benefit or in a reduction in its duration.
- To suspend the application of the provisions of the third paragraph of Article 276.3, so that, in the case of beneficiaries of the allowance for those over fifty-two years of age, payment of the allowance and the social security contribution will not be interrupted even if the required annual income tax return is submitted after the legally established deadline.
We remain at your disposal for any doubt or clarification in this respect.