COVID-19 | Employment measures in Spain

Said Royal Decree-Law contains a package of measures that could be unilaterally imposed by the employer, in order to grant the companies with mechanisms to cope with this exceptional situation, and others that could be demanded by the employee, which are intended to stimulate the labour conciliation to those employees that can prove having duties of care of dependent relatives, and to avoid the application of sanctions in those cases.

Measures that could be unilaterally imposed by the employer:

Temporary suspension of contracts and reduction of working time due to force majeure:

• What?

With the application of this measure, employers would be entitled to suspend contracts or reduce (by between 10% and 70%) the working time of their employees, with the proportional reduction of salary. Employees would be entitled to unemployment benefits to compensate – partially – the decrease of salary suffered.

If the employer commits to maintain the employment for six months as from the restart of the activity and if the company has less than 50 employees (on 29 February 2020), the employer would be entitled to an exemption of payment of the employer's contribution during the period of suspension of contracts or reduction of working time. If the company has, at that date, 50 or more employees, the exemption from the obligation to pay contributions will be as of the 75% of the company's contribution.

Additionally, the new regulation states that the employees would be entitled to perceive the contributory unemployment benefit, even if they do not comply with the minimum period necessary for it, and the period during which the contributory unemployment benefit is received would not be computed for future unemployment benefits.

• When?

It would be considered as force majeure if the suspension of contracts or the reduction of working time were due to a loss of activity because of COVID-19, or as a consequence of the declaration of the 'alarm state'. In this sense, Royal Decree-Law 8/2020 includes –specifically – the following situations:

• the suspension or cancellation of activities (such as closures of restaurants, bars and retail in general),
• the temporary closure of establishments open to public,
• a loss of activity caused by the restrictions made on public transport and, in general, on the mobility of people and goods,
• a lack of supplies that seriously impedes 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 authorities.

In any case, the employer would have to prove that the causes of force majeure concur with the grounds relied on, and ultimately, it would be the labour authorities in charge to verify if this is the case.

• How?

The procedure to suspend contracts or reduce working time based on force majeure starts at the request of the company to the Labour Authorities (accompanied by a report proving that the loss of activity is linked to COVID-19 and the supporting documentation), whom will decide whether the force majeure is proved within 5 days.

Temporary suspension of contracts and reduction of working time due to objective reasons:

• What?

With this measure, employers would be entitled to suspend contracts or reduce (by between 10% and 70%) the working time of their employees, with the proportional reduction of salary. Employees would be entitled to unemployment benefits to compensate – partially – the decrease of salary suffered.

If the suspension or reduction is based on objective grounds, the employer would have to continue paying the employers' contribution during the suspension or reduction, because no social security exemptions has been foreseen in this case.

Additionally, the new regulation states that the employees would be entitled to receive the contributory unemployment benefit, even if they do not comply with the minimum period necessary for it, and the period during which the contributory unemployment benefit is received would not be computed for future unemployment benefits.

• When?

For those cases that cannot be considered as force majeure, Royal Decree-Law 8/2020 introduces the possibility to temporarily suspend contracts or reduce working time if proven economic, technical, production or organisational grounds exist (such as a decrease of work due to the lack of demand, decrease of the net turnover, or forecast losses).

• How?

The procedure also starts at the request of the company (accompanied by a report proving the existence of objective causes with the supporting documentation), but will need a mandatory consultation period of a maximum of seven days with the employees' representatives. At the end of the consultation period, the employer must communicate to its employees, employees' representatives and the labour authorities the effects and measures decided.

Measures that could be demanded by the employee:

Adaptation of working time:

• What?

Employees would be entitled to adapt their working time if they can prove having duties of care of dependent relatives. If the request is justified, they would be entitled to adaptions that are reasonable and proportionate in relation to the situation of the company, particularly in the event that various employees from the same company exercise this right.

The right to adapt the working conditions relates to either the distribution of working time or to any other aspect of the working conditions, so it may mean a change of shift, an altered and more flexible timetable, a change of workplace, a change of duties, a change in the manner of performing the work, such as teleworking, or any other reasonable change.

As stated in the Royal Decree-Law 8/2020, prior to proceeding with the measures that could be imposed unilaterally by the employer, employers must encourage other working alternatives, such as teleworking, by adopting the appropriate measures (if this is technically and reasonably possible and if the effort required is proportionate). In this case, the obligation to carry out a risk assessment is understood to be complied with through a self-assessment carried out voluntarily by the employee.

• When?

The employee would be entitled to request this right when their presence is required to attend their spouse or equivalent, or relatives up to the second degree of consanguinity, who, by reason of age, illness or disability, would require personal and direct care, as a consequence of COVID-19.

This right can also be exercised when exceptional circumstances concur such as: a) if the employee is required to attend them because of the decision adopted by the government authorities related to the closure of educational establishments or establishments of any other nature that provided care to the relative, or b) if the employee is required to attend a relative that, up to that time, was cared by any other person that could not continue to do so because of circumstances related to COVID-19.

• How?

The employee would have to make a proposal that will be negotiated with the company in aim to reach an agreement. The proposal would have to consider not only the employees' needs but also the organizational needs of the company.

Reduction of working time:

• What?

Employees would have the right to reduce their working time, with the proportional decrease of salary, if they can prove having duties of care of dependent relatives and if the request is justified, reasonable and proportionate in relation to the situation of the company, particularly in the event that various employees from the same company exercise this right. Such reduction could cover the 100% of the employee's working time.

• When?

The employee would be entitled to claim for this special right when their presence is required to attend their spouse or equivalent, or relatives up to the second degree of consanguinity, who, by reason of age, illness or disability, require personal and direct care, as a consequence of COVID-19, and also if the special circumstances stated in the adaptation of the working time exist.

• How?

The request would have to be made by the employee with 24 hours' prior notice.