CORONAVIRUS – Spain – Legal provisions enacted March 18 – 31 2020 (1/2)

The measures adopted in Spain in the fight against the health and socio-economic effects of the COVID-19 “coronavirus” during the second half of March 2020 are many, of various kinds and depth, and affect practically all sectors of activity that we Amber Legal & Business Advisors summarize the key aspects in this Newsletter:

  1. Royal Decree-Law 9/2020, of March 27
  2. Royal Decree-Law 10/2020, of March 29
  3. Order SND / 307/2020, March 30 – Model Responsible Declaration.
  4. Royal Decree Royal Decree-Law 11/2020, of March 31.

In this newsletter we focus on sections 1 to 3.

By way of introduction, the health emergency continues, and health emergency intensifies, forcing public administrations to act and make decisions, in an extraordinary, unknown and “dynamic” crisis, in terms used by the spokespersons, lagging behind events. Spanish Congress has resolved to extend the quarantine until 00:00hrs of April 12, although further extension is foreseen till the end of April.

If this is so in Spanish Government and governmental agencies, one cannot expect less from citizens – both individuals and companies – mostly , self-employed workers and professionals and SMEs – who in a few days are overwhelmed by packages of laws and measures at all the levels, of tremendous importance, many lacking clarity that generates continuous explanatory and error- correction provisions, that require professional information and advice to be able to apply them correctly in order a) not to incur infractions and b) comply with the priority objective of defending people’s health, but at the same time, to the extent possible, keep the activity. 

Leaving aside the numerous provisions enacted to control activities and Government internal budgetary and public -procurement provisions, the new provisions refer mainly to health and social care areas, support from policy, military, public transport, and  bodies, transport and mobility, essential services , we will focus on those most directly related to the functioning of the legal system in the economy and businesses:

1.- Royal Decree-Law 9/2020, of March 27, by which complementary labor measures are adopted to mitigate the effects derived from COVID-19 (BOE 03/28/2020)

Restrictive applicability of the ERTE-Force Majeure regime:

The Government clarifies that force majeure and the economic, technical, organizational and production causes of measures to suspend employment contracts and reduce working hours due to the COVID-19 crisis DO NOT justify the termination of the employment contract or dismissal and in this regard, the Final Provision no. 1 modifies RD-Law 8/2020.

Processing of COVID-19-temporary layoff (“ERTEs- COVID 19”):

The procedure for approval of unemployment benefit is shortened and simplified to all individuals affected by temporary layoffs and work hours reduction based on force majeure or economic, technical, organizational or production causes, in both cases related to the COVID-19 emergency, whereby applications must be submitted within 5 days from the request of the ERTE (or starting on March 28 as regards ERTEs requested before) .

Temporary contracts:

Temporary layoffs, of temporary employment contracts including formative, including shift schemes and apprenticeships, qualifying for benefits under the ERTE-COVID-19 programs shall also imply the interruption of term of these contracts and interim contracts, for causes eligible for ERTE-COVID-19 program will also imply the interruption of the calculation of the duration of these contracts and reference periods equivalent to the suspended period.

Date of unemployment effects:

It is clarified that the date of effects of unemployment status in case of ERTE due to force majeure will be that of the event, while in the case of ERTE-for economic, technical, organizational and production causes, would be coincident or subsequent to the date of notice to the labor authority. The maximum duration of all ERTEs-COVID-19 programs is limited to the duration of the emergency state and its extensions.

Penalty system:

For the avoidance of doubt, Addenda provision no. 2, declares that in case of falsehoods or inaccuracies in the application for ERTEs “.. consisting of requesting measures, in relation to employment that are not necessary or do not have sufficient connection with the cause that originates them, and lead to generation or perception of undue benefits … “ will be punishable administratively or criminally, in the company (logically unless it is attributable to the worker) in addition to the mandatory reimbursement of received benefits in breach of these rules and the competent governmental agencies shall review the files ex officio.”

Royal Decree-Law 10/2020, of March 29, which regulates a recoverable paid leave for employed persons who do not provide essential services, to reduce the mobility of the population in the context of the fight against COVID-19 (BOE 03/29/2020).

To intensify conferment Government orders  all companies and employers to put employees on mandatorily paid leave (recoverable) for a period between March 30 and April 09, 2020 both inclusive, (although Transitional Provision no. 1  allowed Monday March 30 to perform essential tasks so as not to irremediably or disproportionately damage or jeopardize resuming operations and activities after the leave for confinement. This leave shall be recovered with hours of work between the end of the emergency state and December 31, 2020. Companies shall negotiate with the legal representatives or a committee with employees to be formed in 5 days by one member out of the most sector-representative unions , (or, failing that, 3 company workers), respecting breaks – daily, weekly, maximum annual working day – and conciliation.

Exceptions:

  • Workers in companies or lines of activity of essential sectors according to ANNEX to the RD itself; workers to whom ERTEs are applied (which, due to their nature and purpose are not going to work); workers on temporary leave or suspension from work for other concepts and workers who may continue performing their work by telework or distance modality.
  • At the same time, companies subject to this rule are allowed, “… if necessary, to establish the minimum number of staff or strictly essential work shifts in order to maintain the essential activities. This activity and this minimum workforce or shifts will be similar, by reference to the level of activity of an ordinary weekend or on holidays.- “

3.- Ministerial Order SND / 307/2020, March 30, which establishes interpretative criteria for the application of Royal Decree-Law 10/2020, of March 29, and standard form of sworn statement to facilitate the necessary movements between the place of residence and work (BOE 03/30/2020)

It clarifies the activities excluded from the scope of application of RD-Law 10/2020, of March 29 (recoverable paid leave) and also provides for a standard form of sworn statement certifying that  its bearer is a worker who can continue making trips to the workplace or to the development of his/her union or business representation activity.

It also clarifies that the state of emergency declared by RD 463/2020, of March 14, only affects the self-employed who provide their services in activities suspended by such emergency situation and accordingly, the provisions of recoverable paid leave are NOT applicable. to self-employed or self-employed workers.

Amber Legal & Business Advisors 

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