Lawyers ERTE Madrid

Do I have to inform my employer if I travel to a risk zone?

Just as the company must inform, the employee also has a duty. "Yes, the employee has a duty to inform the company because he/she has a duty to cooperate with the company in health and safety matters. Therefore, if a worker omits this information, he will be in breach of his obligations in terms of risk prevention and may be subject to disciplinary sanctions (according to Article 29.3 of the LPRL). This includes the imposition of misdemeanors or even dismissal, which, although in this case would be disproportionate, according to the expert would be considered appropriate.

In case of infection, what is my employment status?

There are two situations: if I have been infected, I am on sick leave and, therefore, as a worker, I should not and cannot work. "In the case of being in preventive isolation as a consequence of the coronavirus, the worker will be considered to be in a situation of temporary incapacity derived from common illness.

Can the prevention service make public a list of affected persons?

According to the Spanish Data Protection Agency (AEPD) the company cannot be provided with information on health-related data unless the express consent of the workers is obtained. "The prevention services of the companies cannot make public a list of possible infected persons; in fact, they must not grant more information than that provided for in Article 22.4 of the LPRL, i.e. on examinations carried out in relation to the aptitude for the performance of the job or the need to introduce or improve the protection or prevention measures.

Can they ask me for a medical report?

The company cannot force a worker to present a medical certificate to know if he/she has COVID-19 or any other pathology", "nor can it fire a worker for not providing these medical reports".

The Ministry of Labor has issued an action guide to curb the epidemic of coronavirus in the workplace. In the document, companies are asked to stop the activity if there is a risk of contagion in the workplace, provided that there is a "serious and imminent risk" that includes an assessment based on "reliable facts". To "avoid situations of social contact", companies are encouraged to implement teleworking..

Can Spain take up this telework measure as effective?

"Spain is not a country where teleworking is abundant, but is one of the European countries with the lowest rate of both occasional and regular teleworking," says Rimbau. In a crisis situation like the current one, haste can cause problems. "It is very difficult for companies that do not have teleworking practices to implement it as a matter of urgency. In fact, the companies that have started to use this model in the current alert situation are because they already had teleworking policies more or less in place and have simply expanded them," says the expert.

"Implementing it in a company that has never had it before is very difficult because it requires policies, technology and a managerial quality that they do not improvise," she adds. The "emergency" telework in the face of a possible pandemic will be "costly and probably will not give the expected results, and therefore, it could be thought that it does not work".

Rimbau warns, "what does not work is unplanned teleworking; what would be desirable is that, before the health situation leads to a general call for teleworking, planning should begin in all companies to implement it successfully".

If I am healthy, can they force me to telework?

«The measure must be agreed between the worker and the company, telework cannot be imposed by the company nor can it be imposed by means of article 41 of the Statute of the worker or by collective agreement. The worker has the right to decide since this change implies modifications in the contractual regime. To render the services from home, instead of rendering them from the work center, means that a part of the work activity is carried out without company supervision and this cannot be imposed.

If I have been infected at work, is it considered an occupational contingency?

«In general and with some exceptions, the courts have determined that situations caused by flu or equivalent viral processes derive from common illness, even with respect to health personnel».

To be considered as an occupational disease or occupational accident, it must arise from the consequences of the work performed, due to the action or the elements indicated for each occupational disease, and be recognized in the list of statutory occupational diseases.

Can they force me to be isolated?

«Yes, they can if the health authorities so decide», experts say. The authorities can adopt control measures such as «preventive isolation», known as quarantine, when there is a danger to the health of the population and to avoid the risks of contagion.

«These workers in preventive isolation are not affected by an accident or an illness, but are being monitored and receiving health care in order to diagnose their condition and, for these reasons, they are prevented from going to work». Even so, according to the criteria adopted by the Social Security, these workers are considered to be in a situation of temporary disability, i.e. on sick leave, and therefore exempt from working.

If my company does not give me work because of COVID-19, will I get paid?

«When it comes to catastrophic causes or force majeure, as the COVID-19 epidemic could be considered, and the company is unable to assign work to the employee, the employee may not receive his or her salary». Thus, the work activity could be paralyzed, a collective dismissal procedure could be initiated, or a suspension of contracts or reduction of working hours (ERTE) could be initiated.