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COVID-19: PEOPLE: Latest developments in employment law (Spain)

23 April 2020 | Madrid
Legal Briefings – By Eduardo Gómez de Enterría and Gustavo Arroyo

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On 22 April, Spain’s Official State Journal (Boletín Oficial del Estado) published Royal Decree-law 15/2020, of 21 April, on additional urgent measures to protect the economy and employment (“RDL 15/2020”).

The main employment-related measures included in RDL 15/2020 are:

  • Unemployment benefit is increased in the following situations:
    • Where a company terminates employment during an employee’s probationary period from 9 March onwards, and
    • where an employee has voluntarily terminated their employment from 1 March 2020 due to a firm offer of employment with another employer which ultimately does not materialise due to the COVID-19 crisis.
  • Royal Decree-law 8/2020, of 17 March, on extraordinary measures to tackle the economic and social impact of COVID-19 (“RDL 8/2020”) has been amended, in particular in relation to the extraordinary measures adopted for seasonal workers and workers who perform set, periodic tasks on certain fixed dates, establishing that:
    • If the company in which they render their services has applied temporary layoffs or reduced working hours (ERTE) linked to COVID-19 and the date on which those workers would have been rehired but for the COVID-19 crisis is approaching, they will be entitled to unemployment benefit equivalent to other workers; i.e. they will not be required to have met a minimum contribution period and the unemployment benefit received will not be taken out of their normal unemployment benefit entitlement.
    • Workers who are not in the above situation but who have their services interrupted as a result of the COVID-19 crisis during periods that, but for the crisis, they would have been rendering their services, and they come to receive unemployment benefit as a result, may receive unemployment benefit again – up to a limit of 90 days – when they are again legally unemployed.
    • Workers who provide proof that they have not been able to re-join the company on the set date as a result of COVID-19 and who were receiving benefit will not have those benefits suspended.
    • Those workers whose work has been interrupted and have not been able to return to work as a result of COVID-19, and whose contributions are insufficient for them to be eligible to unemployment benefit, shall be entitled to a new benefit until they are able to return to work, albeit subject to a limit of 90 days.
  • Companies that perform services classified as essential during the crisis but that are affected by an event of force majeure as established by article 22 RDL 8/2020, are now able to apply for an ERTE on the basis of ‘partial’ force majeure in respect of the part of the business that is not classified as essential or staff connected to that part of the business.
  • The preference given to remote working and the right to adapt and reduce working hours is extended until two months have elapsed beyond the end of the state of emergency. It should be remembered that the measures adopted in the context of the state of emergency, including this one, will remain in force until one month has elapsed after it ends.
  • In order to prevent the actions taken by the Labour Inspectorate expiring, it has been established that the duration of the state of emergency and any extensions of the same shall not count towards the time needed to perform any verifications or to fulfil any requirements.
    The above is except for any verifications and demands or freezing orders triggered by circumstances closely related to the events that led to the state of emergency, or those that, due to their seriousness or urgency, are vital for protecting the general public interest; if so, grounded justification must be sent to the affected party.
  • Statutory limitation periods for claiming liability connected to compliance with employment and Social Security provisions are paused.
  • In order to combat potential COVID-19-related benefits fraud, a modification has been made to the very serious offence provided for in article 23.1, c) of the Law of Labour Offences and Sanctions (Legislative Royal Decree 5/2000, of 4 August, which approves the recast Law of Labour Offences and Sanctions). It is now drafted much more broadly: “To make statements, or provide, send or file false or inaccurate information which leads to workers unduly obtaining or enjoying benefits, as well as connivance with workers or other beneficiaries with the purpose of receiving benefits”.
    When the above offence is committed, the company is directly liable for reimbursing the amount unduly received by the worker provided that the worker has not acted culpably or with wilful misconduct. If so, the worker would still be entitled to salary in respect of the initially authorised temporary layoff period, minus the unemployment benefit received. 
  • It establishes the conditions for pension scheme participants to cash their individual and associated pension scheme rights and fixed- or mixed-contribution pension scheme rights in the events established by Royal Decree-law 11/2020, of 31 March, which adopts additional labour and economic measures to tackle COVID-19. In addition, it also sets out how to provide evidence of the eligibility requirements for cashing those schemes and the amount of consolidated rights available.
  • Self-employed workers are given three months to choose a mutual society that collaborates with the Social Security to handle certain Social Security benefits.

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