Which are the obligations of the employer?
Based on their duty to protect health and safety at work, employers are responsible for adopting all those preventive measures indicated by the risk prevention services to guarantee a safe working environment.
In this sense, the first obligation of an employer is to keep employees informed on the health and safety recommendations issued by the competent Health Authorities.
Another important obligation is to inform employees immediately on the existence of a risk of infection in the workplace, for instance as a consequence of detecting a case of contagion nearby. In this case, the employee will need to implement the necessary measures, which may even consist even in the immediate interruption of activity at the workplace.
It is also recommended to limit work trips to risk areas and, where feasible, to implement flexible forms of work organisation such as teleworking.
Can the employer force its employees to work from home?
According to the provisions of Article 13 of the Spanish Workers Statute, the employer cannot unilaterally impose on the worker the obligation to provide its services outside the usual workplace.
Therefore, except in cases where there is a previous consent, the Company may only implement teleworking by agreement with the employees, whether collective or individual.
The agreement needs to be in writing and include the estimated duration of the measure. Furthermore, such a decision cannot imply the reduction of the worker’s rights, nor cause them an additional cost.
Moreover, based on its obligation to protect health and safety at work, the employer may refuse access to the workplace to those employees who show clear signs of infection.
Can the employer force its employees to unpaid leave?
No, Spanish Law does not allow the employer to unilaterally impose this measure. Actually, the employer may not even impose a paid leave unilaterally as the employee has the constitutional right to work effectively.
Can the employer force its employees to take vacations?
No, because the Workers Statute provides that vacations shall be set by mutual agreement between employer and employees, thus they cannot be imposed even in the event of force majeure.
Can employees unilaterally suspend their activity for fear of contagion?
No, employees cannot unilaterally suspend the activity and any unjustified absence from work may be sanctionable.
The only exception consists of the employee’s right to interrupt his activity and leave the workplace, if necessary, whenever he considers there is a serious and imminent risk to his life.
What happens to an employee’s salary in the event of contagion isolation or quarantine?
Spanish Government has approved a royal decree stating that employees infected or those in quarantine are both considered to be in a situation of temporary inability to work, assimilated to the sick leave due to professional illness or work accident.
Can employers replace quarantined employees?
As with any other employee in a sick leave situation, employers can replace quarantined employees by means of temporary contracts “contratos de interinidad”, either directly or through temporary employment agencies.
What happens to parents who need to take care of their children due to the closure of schools?
Even though Spanish Law does not provide any specific on this matter, based on the right of reconciliation of family and working life, as well as on the employee’s entitlement to paid time off to fulfill unavoidable public and personal duties, employers shall offer, to their affected employees, flexibility measures such as work from home, when operationally feasible. If this option would not be possible, the affected employee shall request to the employer an unpaid leave or a reduction of working time, which implies a proportional reduction of salary. Nevertheless, the Spanish Government has announced imminent measures including financial benefits for those employees that will need to suspend or reduce their working day to take care of their children as a consequence of the closure of schools.
What measures can take the employer in the event of a drop in business derived by the Coronavirus?
It is inevitable that coronavirus will seriously affect many companies in the short-medium term. For this reason, it is logical that the measures to be adopted by employers in relation to the productive structure, including the workforce, should also be temporary.
In this sense, a drop in business could require a temporary downsizing of the workforce. This goal may be achieved either through a suspension of employment contracts or with a reduction of the working hours, or with a mix of both measures, on account of the needs of each company.
Spanish Law provides a specific procedure known as Expediente de Regulacion Temporal de Empleo or ERTE, which allows the employer to temporarily suspend in full or to decrease the number of working hours of certain or all employees for a limited period of time. The reduction of working hours should be between 10 and 70% of the fulltime contract and can be set in hours/day, days/month or even a certain period in the year. In both cases, affected employees can apply for the unemployment benefits for the time/hours of suspension or reduction.