New measures in the labour field related to Covid-19

The Ministry of Health has announced new measures related to SARS-CoV-2 and the behaviour to be followed in the workplace for de-escalation and return to work. The work restrictions taken since the beginning of the pandemic are maintained and will be regulated as the different phases progress. At Elías Muñoz abogados we are available to resolve all your possible doubts about the latest modifications in legal matters. We have established an online lawyer service so that you can have the legal advice you need in compliance with the social distancing indications.

Details on the prevention of occupational hazards and the protection of workers' health and safety

Work activity and work stoppage due to company decision

The different companies can organise themselves internally to maintain the work activity, as long as they comply with the preventive measures that avoid situations of risk or contact. Each worker must be aware of the fact that the company must inform the worker of the need for decoordination as stipulated in article 21 of Law 31/1995, of 8 November, on the Prevention of Risks at Work. In case the worker may be exposed to any eminent risk the company must inform about this risk and take measures for the protection of all involved. The measures can range from alternative forms of work to the abandonment of the workplace by the personnel if the company or the worker perceives a real risk of contagion.

Worker's decision to stop work activity

As stipulated in Article 21(2), workers may leave their workplace in the event of an imminent risk of coronavirus infection. The prevention delegates or the union representatives can also agree to stop the work of persons who are exposed to or at risk of infection, without suffering any harm or damage. It is important to clarify that no harm is suffered as long as it is not done in bad faith or negligently, so it is clear that it must be probable that there is a possibility of harm to the health of the workers.

This does not mean that, in the face of social alarm or subjective risk assessment, the worker may or may not leave his or her job. For one case or the other to occur, there must be evidence and elements that suggest the real possibility of contagion of the virus.

Preventive measures from the company

It is the responsibility of companies to take all necessary measures to ensure that no worker runs the risk of contagion in their usual workplaces. Each company will adapt the measures depending on the activity they carry out and its characteristics. The frequency of contact between people should be avoided or reduced to a minimum. Hygienic measures to prevent contagion should also be informed and promoted, ensuring conditions for ventilating the workplace, washing hands and cleaning surfaces and objects.

Companies are responsible for providing all hygienic material and for complying with the cleaning measures according to the workplace. Special measures must be taken for the care of the most vulnerable and sensitive people. In companies that come into contact with the public, hygienic measures must be implemented to protect workers, ensuring the necessary means of protection such as disinfectants, masks, protectors or other necessary implements

Telework as an alternative to work

Teleworking is an alternative to Coronavirus work measures, even if it is not stipulated in the employment contract. Teleworking can be adopted as a collective or individual agreement on an exceptional basis, where the worker can perform various tasks outside the usual physical space. This alternative must be implemented in compliance with all preventive and health requirements as regulated in the Workers' Statute. Opting for this measure cannot pose any problems or affect the worker's rights to safety, health and working conditions.

Total or partial suspension of employment

Given the problems that many companies have with their usual performance due to the coronavirus, it is understandable that they may have to suspend their activity partially or totally. To do so must be as stipulated in article 47 of the Workers' Statute and Royal Decree 1483/2012, of 29 October. The article explains the procedures to be followed for collective dismissal and contract suspension and reduction of working hours.

In the previous case, the temporary lay-off may be total or partial in terms of working hours, depending on the effect. In order to be applied, the causes of force majeure must exist, for example, the decision of the health authorities to close the workplace. In any case, the established procedure must be followed, with the application of the peculiarities foreseen for each case of force majeure.

For those cases in which a stoppage of activity is carried out for any of the above reasons, but without notification of the redundancy plan, Article 30 ET would apply. The application of this article would allow the worker to retain the right to his or her salary.

Phases of decofinition and its impact on the labour market

The phases to return to normality will follow a gradual, asymmetric and coordinated process. The particularities will respond to each Autonomous Community and its level of affectation by the virus.

The first phase will allow the opening of premises and establishments, but always by appointment for individual customer service. According to the ministerial order, in this first phase the conditions of all premises must be prepared for de-escalation, adapting each one with the necessary measures to protect customers and workers.

In the next phase, i.e. Phase 1, the opening of shops will be allowed under strict security measures. In this way, crowds and the opening of large commercial centres will be avoided. Terraces, hotels and tourist accommodation will be allowed to open. The agri-food and fishing sectors will be able to resume work, gradually returning to normal. The health safety measures for the return to work will be announced by ministerial order of the Ministry of Health.

Phase 2 will allow bars and restaurants to open indoors, complying with safety measures and the minimum distance. Some educational establishments will open, allowing children under the age of 6 to attend school if both parents are working. Public spaces such as cinemas and theatres will reopen, and therefore the respective workplaces, also complying with the safety measures set out by the Ministry of Health.

In Phase 3, general mobility between provinces will begin to be made more flexible, allowing the reopening of the majority of workplaces, always complying with the 2-metre distance and the recommended use of masks. Each phase is estimated to last approximately 2 weeks, so depending on the Autonomous Community and the results of each phase, the return to normality will take between 6 and 8 weeks.