Previously we discussed labour measures and the impact of the coronavirus. In this second note we have provided some thoughts from our Expert Committee at Sagardoy Abogados, on this complex issue.(the Committee relies on the collaboration of CPL for aspects related to the Prevention of Occupational Risks).
1. An exceptional situation requires individual responses
We must assume that the current labour regulations do not provide a clear solution to all aspects of the extraordinary situation that the coronavirus is causing in labour relations. There are, therefore, doubts and we must study each case, organisation or sector individually.
2. Absences due to school closures
For employees who are parents affected by school closures, unpaid leave, leave for childcare (art.46.3 of the Spanish Statute of Workers) and taking annual leave early are appropriate solutions. Obviously organisations can take more generous measures such as offering remote working or paid leave. Whether this is feasible will depending on each organisation’s circumstances, production processes and needs.
3. Internal action protocols
Prevention protocols are important: we stress the importance of fully informing staff of hygiene and prophylaxis recommendations. You must warn the organisation in the event of individuals becoming infected, using the Prevention Service if you do not want to do it in person. The Service can enable you to maintain anonymity and allow action to be taken. In anticipation of possible future disagreements, we recommend that you preserve all related to efforts in this area.
4. When in doubt: prioritise health
Health above all: given the multiplicity of cases and situations that can arise in organisation, the general principle that inspires strategy should always be the protection of workers’ health. All actions must be carried out according to this principle.
5. A possible case of force majeure?
There may be a force majeure argument for the temporary suspension of work contracts in the event that an administrative or health authority decision closes down production or activities, or in the event that a massive and simultaneous wave of infection leaves an organisation without a workforce. We would emphasise that every case has to be looked at on a case-by-case basis and employers cannot assume force majeure will apply.
6. Isolation and infection are treated in same way as an accident at work
Please note the provisions of Royal Decree-Law 6/2020, of 10 March, adopting urgent measures in the economic field and for the protection of public health.
Article five states that periods of isolation or infection of workers as a consequence of the COVID-19 virus are an exceptional situation that should be treated in the same way as an accident at work.
‘1. In order to protect public health, periods of isolation or infection of workers caused by the COVID-19 virus will be considered, exceptionally, as a situation equivalent to an accident at work, exclusively for the purposes of the social security system’s temporary incapacity benefit.
2. In both cases, the duration of this exceptional benefit payment will be determined by the certificate of isolation leave for isolation and the corresponding discharge notice.
3. This benefit may be paid to any self-employed person or employee who is registered with any of the social security systems on the date of the event.
4. The date of the event causing the illness is the date on which the isolation or illness of the worker is agreed, without prejudice to the fact that the sick leave was granted after that date.’