Third extension of the ERTEs agreed upon

Royal Decree-Law 2/2021 includes the IV Social Agreement in Defence of Employment, which formalises the THIRD EXTENSION of the Temporary Redundancy Proceedings (ERTE) based on causes related to COVID-19, with effect from 1 February 2021 until 31 May 2021.

With this new agreement, the application of the exceptional measures provided for in Royal Decree-Law 8/2020 of 17 March 2020, which were previously extended in Royal Decree-Laws 18/2020 of 12 May 2020 and 30/2020 of 29 September 2020, is extended for the third time.

It should be recalled that the second extension (RDL 30/2020), approved in general terms the following measures, (1) automatic extension of the effects of all ERTE due to force majeure until 31/01/2021, (2) new conditions for ERTE due to ETOP causes initiated on 30/09/2020, (3) new modalities of ERTE due to IMPEDIMENTO and due to LIMITATION, (4) new period for maintaining employment of 6 more months, to companies benefiting from exemptions in extended force majeure ERTEs , ERTEs for ETOP causes, ERTEs due to the resumption of RDL 24/2020 or new ones due to an impediment or limitation in the development of their activity, and (5) specific contribution exemption scheme for companies belonging to sectors with a high rate of coverage of workers in ERTEs and a low rate of recovery of activity.

The Third Extension, published on 27 January 2021, along the same lines as its predecessors, includes the following new features:

1. ERTE due to force majeure

All ERTEs, in force, will be automatically extended from 1 February 2021 to 31 May 2020.

2. ERTE due to ETOP causes

COVID ERTEs based on Economic, Technical, Organisational and Production (ETOP) causes may continue to benefit from both the simplification of procedures provided for in Article 23 of Royal Decree-Law 8/2020 and from the possibility, which does not exist in its ordinary regulation, of processing an extension by submitting to the labour authority an agreement to that effect with the unitary or trade union representation in a consultation period.

3. ERTE due to IMPEDIMENT and LIMITATION

The modalities of ERTE by Impediment and by Limitation are maintained, in identical terms of processing and requirements. The ERTES in force will be automatically extended from 1 February 2021 to 31 May 2020.

With regard to the possibility of changing ERTE, companies that are holders of an ERTE due to an impediment or limitations, authorised before or during the validity of this regulation, will not have to request and process a new file before the labour authority to change from one to the other, in order to access the exonerations derived from a modulation of the health restrictions that place them in an activity impediment from one limitation to the other, or vice versa. It will be sufficient for them to send a communication to that effect to the labour authority that has issued the decision corresponding to the ERTE of which they are the holder, and to the workers’ representatives, in order to access the benefits. Nor is it necessary for them to submit a new collective application for benefits to the SEPE.

4. MAINTENANCE OF EMPLOYMENT

Companies benefiting from ERTE exonerations, once they have completed the 6-month safeguard period of RDL 8/2020 and the 6-month period of RDL 30/2020, undertake, in exchange for the benefits for the exonerations regulated in the new regulation, to maintain employment for ANOTHER NEW PERIOD of 6 months’ duration.

The limits on the distribution of dividends and tax transparency, the limits on overtime and outsourcing of activity, the prohibition of dismissal and the interruption of temporary contracts are maintained.

5. INCORPORATION OF NEW CNAE

Specific contribution exemptions for companies belonging to sectors with a high rate of coverage of workers in ERTE and a low rate of recovery of activity are incorporated into the specific regime. The new CNAE that are added to those already included in the September 2020 list are:

CNAE 5530 -campings and caravan parks-
CNAE 7734 -rental of means of navigation-
CNAE 9604 -physical maintenance activity- CNAE 1393 -carpet manufacturing- CNAE 1393 -carpet manufacturing- CNAE 1393 -carpet manufacturing

In turn, the following disappear from the list:

CNAE 1393 -carpet manufacture- CNAE 2431 -dressing of carpets- CNAE 2431 -stretching of carpets
CNAE 2431 -cold drawing- CNAE 3220 -manufacture of carpets- CNAE 3220 -manufacture of carpets
CNAE 3220 – manufacture of musical instruments – CNAE 3220 – manufacture of musical instruments

6. EXEMPTIONS FROM SOCIAL SECURITY CONTRIBUTIONS

List of CNAE codes, including sectors with a high ERTE coverage rate

The First Additional Provision of RDL 2/2021 establishes that between 1 February 2021 and 31 May 2021, companies whose activity is classified in some of the CNAE-09 codes to which companies belonging to sectors with a high rate of coverage by ERTE belong will be exempt from paying the employer’s contribution to Social Security and for joint collection concepts, in the following cases:

1. When a force majeure ERTE is automatically extended, in accordance with the provisions of Article 22 of Royal Decree-Law 8/2020, of 17 March, in force at the time RDL 2/2021 comes into force.
2. When between 1 February 2021 and 31 May 2021 they transition from a force majeure ERTE to an ERTE ETOP.
3. Companies entitled to the exemptions provided for in the first additional provision of RDL 30/2020 and which have processed an ERTE ETOP.
4. Companies whose business depends, indirectly and for the most part, on companies belonging to sectors with a high ERTE coverage rate, or which form part of their value chain (First Additional Provision of RDL 30/2020):

- - When they automatically extend the ERTE of force majeure based on Article 22 of RDL 8/2020,
  - When they transition in the period between 1 February and 31 May 2021, from an ERTE due to force majeure based on Article 22 of Royal Decree-Law 8/2020, of 17 March, to one due to economic, technical, organisational or production causes, in accordance with the provisions of Article 3 of Royal Decree-Law 30/2020.

The aforementioned companies shall be exempted from paying social security contributions in respect of:

1. Workers affected by ERTE who restart their activity as of 1 February 2021.
2. Workers who have restarted their activity since the entry into force of Royal Decree-Law 18/2020, of 12 May, on social measures in defence of employment and the periods and percentages of working hours worked as of 1 February 2021, and;
3. Workers whose activities are suspended between 1 February 2021 and 31 May 2021 and the periods and percentages of working hours affected by the suspension.

The percentages and conditions that shall apply are as follows:

		EXEMPTION	PARTICULARITIES
Sectors listed CNAE codes	Less than 50 workers	85%	Duration from 1 February 2021 to 31 May 2021. Exemptions for both suspended workers and those returning to work.
	50 or more workers	75%

Exonerations ERTE due to impediment and limitation of the activity

Article 1 of RDL 2/2021 provides for the application of exemptions from social security contributions, as of 1 February 2021, for persons affected by ERTES due to limitations or impediments in the development of their activity, in the following percentages:

		EXEMPTION	SPECIAL FEATURES
ERTE of impediment	Less than 50 employees	100%	Duration from the closure period and until 31 May 2021.
ERTE of impediment	50 or more workers	90%	Duration from the closure period and until 31 May 2021.
ERTE of limitation	Less than 50 workers	*100%	February (100 %), March (90 %), April (85 %) and May (80 %).
ERTE of limitation	50 or more workers	*90%	February (90 %), March (80 %), April (75 %) and May (70 %).

The exemption shall apply to the payment of the employer contribution provided for in Article 273.2 of the revised text of the General Social Security Act, approved by Royal Legislative Decree 8/2015, of 30 October, as well as that relating to contributions for joint collection concepts.

AddVANTE remains committed to informing you and to remaining at your disposal for any queries regarding the new measures.