We have gathered information on what measures you can take as an employer to help preserve your employees while keeping your business intact. As more information comes in, we will update this post.
If you have any questions on the impact of Coronavirus on labor laws, visit our Linkedin AMA post and leave us your questions in the comment section and we will reply.
Updated: March 19, 2020
Employers can ask employees to take unpaid leave of up to 15 days.
There is a concept of “ERPE” which is used in cases of “Force Major” such as the Corona virus. In this case the employer can apply for the suspension of employees, and during this period the employee will receive unemployment payments from the government whilst the employer will pay the social security payments.
This course of action is rare, and it takes approximately 21 days to submit and obtain all of the required papers. Employers will not be required to provide documentation of the decreased income of the employer, as well as other figures.
Termination is a further option; however, it is a long and complex process. The fact that this is a redundancy or the closing of branch due to the Corona crisis has no impact on the termination process itself.
The employer should pay to the employee 20 days payment for each year of employment (pro-rated). The employee has the right to decline this and appeal and the employer will eventually pay up to 33 days for each year worked (pro-rated).
Employer and Employee Rights & Obligations Q&A
Source: Baker McKenzie
1. Are employees obliged to disclose themselves as a “risk-factor” to the employer?
- Employees with a confirmed infection need to disclose the same to their contractual employer (“employer”).
- Employees with flu symptoms need to disclose this circumstance.
- Even without flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness), employees who i. had contact with a confirmed infection or ii. visited an event, which later became known to be a venue from which the disease spread, need to disclose this circumstance to their employer.
2. Can the employer demand employees to disclose themselves as being a “risk-factor”?
- The employer’s right to ask certain questions has as counterpart the employees’ obligation to disclose the corresponding information, i.e., the employer has the right to ask for the circumstances specified as per question no. 1 and the employee has to provide the corresponding and truthful answer.
3. Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness) to the employee?
- Yes, the Spanish data protection authority has recently clarified that the legal basis for processing of personal data in cases of an epidemic could be multiple including the vital interest (Article 6.1 (d ), GDPR). This legal basis would cover both the processing of the employee and the processing of personal data aimed at protecting those persons who may be infected by COVID-19. This would justify the processing of personal data in the measures adopted to protect persons who may be infected, even if they are not identified. In the context of employment relationships, the authority has also clarified that, in application of occupational risk prevention regulations, employers may process the data of all their employees necessary to guarantee their health, to ensure their right to health protection and to avoid contagion within the company and/or the workplace.
- In any case, it is important that the processing of personal data comply with all general data protection principles set forth in Article 5, GDPR (purpose limitation, proportionality, data minimization, storage limitation, integrity and confidentiality). For this purpose, the authority has clarified that the reports or questions are limited to inquiring about the existence of symptoms, or whether the employee has been diagnosed as infected, or subject to quarantine. It would be contrary to such principles of data minimization to circulate extensive and detailed health questionnaires, or to include questions that are not related to COVID-19. Additionally, it would be necessary to draft a privacy notice that at least includes all necessary information about the processing of personal data as set forth by Art. 13 GDPR.
4. Can employees refuse to come to work?
- Employees can only refuse to come to work if their health conditions put them at risk and have communicated this to the company so that it can take appropriate preventive measures.
- Companies must ensure compliance with data privacy regulations since the company would be processing very sensitive personal data.
5. Can employees refuse to attend meetings or to travel?
- The Spanish Government has imposed strict limitations to the freedom of movement across all the Spanish territory and it has closed the terrestrial borders, with some exceptions (e.g., transportation of goods, returning home residence or force majeure). Considering also the general recommendations issued by all the authorities to avoid unnecessary travels, it is reasonable for employees to refuse to attend any meetings or travels that are not absolutely essential.
- The authorities have also recommended companies to implement home-based work and work on shifts when possible to avoid concentration of people and use video conferences. Therefore, it is advisable and common practice currently to avoid physical meetings and travels to the extent possible.
- From a health and safety perspective, if a business trip is essential, it will be necessary to take all measures to protect the employees’ health and safety.
6. Can the employer send employees on leave / suspension from work?
- Employees with a confirmed infections or employees who had contact with an individual with a confirmed infection and the health services have ordered the employee to be quarantined until they confirm whether the/she is infected or not the employee will be on sickness absence, exempted from work and receiving a sick leave allowance from the Social Security. The company may be obliged to complement the sick leave allowance under the employment contract or the collective bargaining agreement.
- For other cases, in order to avoid a potential viral spread in the workplace, companies have been encouraged to implement work from home arrangements. Companies will be able to do this if they have objective knowledge, or a reasonably held belief, that an employee has either contracted or been exposed to the Coronavirus (for example, is exhibiting symptoms or recently travelled to an area cautioned by health authorities). In these circumstances, there may exist a bona fide occupational requirement to protect the health and safety of others in the workplace, thereby justifying the requirement to stay home.
- The National Government has implemented specific measures to contain the Coronavirus (including interruption of learning activity in kindergartners, schools and universities or any other educational institutions, restriction of people’s freedom of movement and temporary closing of a wide range of commercial establishments at least from 14 to 28 March 2020. The measures included: i. specific activities in item no. 7 below ii. recommending companies to establish home-based work if possible. iii. update their contingencies plan for emergency situations iv. facilitate flexible working time arrangements to ensure work-life balance under these circumstances v. the use of video conferencing for meetings.
- If working from home is not possible, the company may send employees on suspension from work (during which the employees will continue receiving salary and benefits). As a general rule, this requires the employee’s consent but the legal risks associated with requiring employees to stay home /work from home is low in these circumstances so long as the leave / work from home duration is reasonable having regard to the safety and health of the employees.
- Alternatively, if there is a force majeure cause or objective grounds, as explained in item no. 7 below, the employer can initiate proceedings for suspension of contracts, in which case the employees would be entitled to unemployment benefit and the employer would not be obliged to pay the salary.
7. When is the employer forced to shut down its operations?
- If there is evidence that the place of work is an “out of control crisis venue” and working from home is not possible.
- If the specific activity has been suspended by the Government. In this regard, the following facilities and businesses must temporarily close to the public: cultural, leisure and entertainment establishments, sports centers and facilities, restaurants (except for home delivery), bars, nightclubs, gaming and gambling establishments, recreational facilities, public fairs and, in general, all retail stores except for those providing staple food, drinks or essential products, pharmaceutical, medical, orthopaedic or hygiene products; (iii) hairdresser’s services; (iv) press and stationery products; (v) fuel; (vi) tobacconist products; (vii) technological and telecommunication equipment; (viii) pet food; (ix) online, telephone or postal commerce; (x) dry cleaning and laundry.
- A temporary shut down due to force majeure requires authorization from the labor authorities. According to a Royal Decree passed by the Government on 18 March 2020, the following situations, when duly evidenced, shall be considered to have been caused by force majeure: i. Suspensions of contracts and reductions in working hours that are directly caused by the business that was lost due to the different governmental measures passed as a consequence of the COVID-19 (including the declaration of a State of Emergency in Spain) and which imply the suspension or cancellation of activities, temporary closure of premises of public affluence, restrictions on public transport and, in general, restrictions on the movement of persons and/or goods ii. Lacks of supply that seriously hinder the company’s ordinary course of business, or iii. Urgent and extraordinary situations caused by the contagion of staff or which require employees to be put in preventive isolation by order of the health authorities.
- If there is no sufficient cause of force majeure but the business has been significantly disrupted, employers can implement suspension of contracts for objective reasons (e.g., decrease in demand of the company’s products), which will require consultation with employee representatives. In this kind of suspension, the companies need to cover social contributions, as opposed to force majeure suspensions.
8. Does the employer have the obligation to report infections occurring in the business to the health authorities?
- No, there is no specific obligation to report Coronavirus infections for the moment.
9. Can the employer require an employee to see a doctor?
- The general rule is that companies can only recommend the employees to see a doctor. However, it may be possible to request to see a doctor to check whether the employee’s health status could be a danger to him/herself or other employees/third parties.
10. If employees are sent on leave / suspension from work, or refuse to come to work or if an operation is being shut down, do the employees still need to be paid? There are different scenarios:
- Temporary shut down due to force majeure (e.g., huge number of employees infected): The company must request authorization from the labor authorities to do it. During the temporary shutdown, employees will receive the employment allowance from the unemployment office. The company must continue paying the social security contributions but not the salary.
- Temporary shut down due to objective reasons (e.g., productive reasons if the company is out of stock): The company must enter into a consultation with the employees’ representatives. During the temporary shutdown, employees will receive the employment allowance from the unemployment office. The company must continue paying the social security contributions but not the salary.
- If employees refuse to work and their health conditions do not put them at risk, this could be considered a labor infringement and the company may suspend him/her from work and salary (according to the rules of the Collective bargaining agreement). However, this would depend on the specific circumstances.
- If the company decides to send employees on leave, employees are entitled to receive salary and benefits during the same. Companies can ask employees to take the paid annual leave but this requires the employee´s consent.
- Employees with a confirmed infection or employees quarantined by Health Services because they are under investigation until they confirm whether the/she is infected or not the employee will be on sickness absence (according to the criteria of the Health Services), exempted from work and receiving a sick leave allowance from the Social Security. The company may be obliged to complement the sick leave allowance under the employment contract or the collective bargaining agreement.
11. If kindergartens and schools are being closed and employees need to stay home and cannot work, does the employer need to pay them and – if so – for how long?
- No, the employer is not required to pay them. However, if the employee is unable to work due to children care circumstances, they can request the company: (i) to work from home or to adapt their working time (the company will then analyze if this is possible or not); (ii) a reduction of working time / salary for children care if the children are less than 12 years old, (iii)an unpaid leave of absence or (iv)a paid leave of absence (but the employer must agree on this). The applicable Collective Bargaining Agreement needs to be checked since it may establish days off for personal issues (although this tends to be only 2-4 days maximum) or any additional leaves or flexibility arrangements.
- The Spanish Government announced on 14 March 2020 that learning activity ceases in all of Spain at kindergartens, schools and universities and any other educational institutions for at least 15 calendar days, though this will likely be extended. It also encourages companies to facilitate flexible working time arrangement to ensure work-life balance under these circumstances and the use of use of video conferencing for meetings.
For more details see our complete payroll & benefits guide to Spain