Adrián Castro Gálvez
Yesterday, 21st of April, the Royal Decree-Law 15/2020, of the 21st of April, of complementary urgent measures to support the economy and employment was published in the Official State Gazette. In this Royal Decree-Law, many issues that need an individual and detailed analysis are addressed, which would occupy several entries in this blog, so for the sake of brevity and conciseness, we will focus on the most outstanding measures that affect the workplace.
Expansion of ERTE cases causes force majeure
Regarding the ERTE due to force majeure regulated in article 22 of Royal Decree-Law 8/2020, it is added, concerning the activities that must be maintained following the declaration of the state of alarm, or other regulations, that it will be understood that the force majeure occurs concerning the suspensions of contracts and reductions in working hours applicable to the part of the activity not affected by the aforementioned maintenance conditions of the activity.
Therefore, companies that carry out activities classified as essential can qualify for ERTE for the part of the activity that is not affected by this essential nature.
- Permanent seasonal workers
The extraordinary measures regarding unemployment protection of permanent seasonal workers and those who perform regular and regular jobs that are repeated on certain dates are modified. Its regulation remains as follows:
a) In the event of suspension or reduction of working hours by ERTE of a discontinuous fixed contract (arts. 22 and 23 of Royal Decree-Law 8/2020, of March 17), or those cases in which they are awaiting the arrival of the date on which his appeal would proceed and effective reincorporation, if the crisis of COVID-19 does not mediate, they may benefit from the generic measures established:
o The recognition of the right to contributory unemployment benefit, even if they lack the minimum period of paid employment necessary for it.
o Failure to compute the time in which the contributory level unemployment benefit is received that brings its immediate cause from the aforementioned extraordinary circumstances, to consume the maximum periods of perception established.
b) Workers who, without being in the situation in the previous section, see their provision of services interrupted as a consequence of the impact of COVID-19 during periods that, in the absence of such extraordinary circumstance, would have been of activity, and as a consequence, they become beneficiaries of unemployment benefit, they may receive it again, with a maximum limit of 90 days, when they are again in a legal situation of unemployment.
To determine the period that, if this circumstance had not occurred, it would have been of labour activity, it will be the one worked by the worker during the previous calendar year based on the same employment contract. If it is the first year, it will be the periods of activity of other comparable workers in the company. This measure will apply to the same right consumed and will be recognised ex officio by the managing entity when the interested party requests its resumption.
c) Workers who prove that, as a consequence of the impact of COVID-19, they have not been able to return to their activity on the date scheduled and were beneficiaries of benefits at that time, will not see the right to benefit or subsidy that they have been receiving suspended.
If, on the date on which they should have reincorporated to the activity, they were not receiving unemployment benefits for having exhausted them, but they accredited the period required to obtain a new contributory benefit, the business certification of the impossibility of reincorporation will constitute a legal situation of unemployment for recognition of the right to said benefit.
d) Workers who have had their activity interrupted and those who could not rejoin it as a consequence of COVID-19 and who lacked the period of paid employment necessary to obtain unemployment benefit, will be entitled to a new contributory benefit, which may be received until the date of the incorporation into their job, with a maximum limit of 90 days. The same right will be enjoyed by those who, during the crisis situation derived from COVID-19, exhaust their unemployment benefits before the date on which they take up their job and lack sufficient contributions for the recognition of a new right, in which case, the business certification of impossibility of reincorporation will constitute a new legal situation of unemployment.
- Extension of the validity of the provisions of articles 5 and 6 of Royal Decree Law 8/2020, of the 17th of March and amendment of article 6 (Article 15).
The title of article 6 of Royal Decree-Law 8/2020, of the 17th of March, is amended, which will change from being called "Article 6. Right to adapt the hours and reduce working hours" to read as follows: «Article 6. Plan MECUIDA».
Due to this modification, the validity of the preferential nature of remote work and the right to adapt the hours and reduce working hours (hereinafter referred to as the MECUIDA Plan), provided for in Royal Decree-Law 8/2020, is extended up to two months after the validity of the alarm state (three months in total, to the extent that the effects of the alarm state remain in force for an additional month after the end of the alarm state).
For this reason, since the validity is expected one month from the end of the alarm state, the validity of teleworking lasts until the 9th of August.
- Postponement of Social Security debts.
In this Royal Decree, the deferment in the payment of debts with Social Security is regulated, whose regulatory term of entry takes place between the months of April and June 2020.
Applications must be made before the first ten calendar days of each of the statutory payment terms have elapsed and the postponement will be granted by means of a single resolution, will be amortised through monthly payments and will determine an amortisation period of 4 months for each monthly payment requested from the month after which it was made, without exceeding a total of 12 monthly payments.
The postponement will be incompatible with the quota moratorium and requests for deferment for periods for which the aforementioned moratorium has also been requested will be considered as not filed, if the applicant has been granted the latter.
- Labour and Social Security Inspection.
The Second Additional Provision suspends the terms within the scope of the Labour and Social Security Inspection during the period of validity of the state of alarm declared by Royal Decree 463/2020, of March 14, declaring the state of alarm for the management of the health crisis situation caused by COVID-19, as well as its possible extensions.
Therefore, during the validity of the state of alarm, as well as its possible extensions, it will not compute for the purposes of the duration of the actions of the Labour and Social Security Inspection or for the fulfilment of any requirements.
The exception to this general rule is the actions derived from situations closely linked to the facts justifying the state of alarm, or those that due to their gravity or urgency are indispensable.
From Balms Abogados we remain at your disposal to resolve any question that may arise regarding the application of these new measures approved by our Government.