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The 10 business trends in Labor Relations after Covid-19. (Second part)

The 10 business trends in Labor Relations after Covid-19. (Second part)

  1.- The maintenance of workers in temporary employment regulation files (ERTEs) of total or partial force majeure and, successively, in productive ERTEs (ETOP) as a flexible and dynamic model that allows suspensions and reductions in working hours. 

The formula for force majeure ERTES (hereinafter FM) has allowed the “hibernation” of the economy and employment to take place during COVID 19 and from the declaration of the state of alarm with less “collateral damage”. Force majeure has been strictly defined in article 22 of RDL 8/2020, including different situations with direct cause in the loss of activity as a result of COVID 19: (i) suspensions or cancellations of activity related to the state of alarm; (ii) lack of supplies; and (iii) health cause due to contagion or preventive isolation situations. 

These ERTES of force majeure have recently been extended until June 30, 2020 and are disassociated from the validity of the state of alarm, although a possible extension is announced by productive sectors and all this based on (finally) a prior Agreement between the Government, CEOE, CEPYME , UGT and CC.OO whose text has been included in the recent RDL 18/2020. 

These ERTES by force majeure can now be total force majeurederived from COVID 19 (in those activities that cannot be reopened in the de-escalation plan of the confinement measures) and partial force majeure derived from COVID 19 (in those activities and companies and entities in which force majeure causes the partial recovery of the activity until June 30, 2020). 

However, there are uncertainties about whether the literal wording of the rules will be imposed, which seems to include a legal obligation for companies to renounce the ERTE of total force majeure (“companies must reincorporate workers to the extent necessary for the development of their activity") Or if, according to the spirit and purpose of the regulation, a discretionary decision of the company to remain in total force majeure will be allowed until June 30, taking into account what is included in the Statement of Motives of RDL 18 / 2020 (“the objective is to provide a weighted response ... while also addressing the de-escalation scenario and the progressive resumption of economic activity”). In addition, it is not clear in the regulations whether, according to each sector and activity and the de-escalation plan, the workers affected by total FM ERTES generate new effective employment rights and wages, even in reduced hours.  
Force majeure ERTEs may also be extended by the Council of Ministers, by productive sectors, if they subsist beyond the June 30th, 2020 activity restrictions linked to health reasons. In the ERTES of partial force majeure, different temporary scenarios of exemption from social contributions are created for the months of May and June 2020 that must be requested by the companies through "responsible statements" to be sent to the TGSS and giving priority to greater public protection for companies with higher percentages in relation to workers who restart their activity and lower percentages for workers who continue with their suspended activities. 

The ERTES for economic, technical, organizational and / or production reasons (ETOP) communicated or agreed from the date of entry into force of RDL 8/2020 until June 30, 2020, will be guided by the specialties of article 23 of said regulation with the specialties and simplification of procedures in the procedure. 

However, the administrative and judicial review of the ERTES de FM and ERTES ETOP may be done at a stage subsequent to their authorization by express resolution or positive silence (art. 24 Law 39/2015) or unilateral agreement or decision and it is certain that there will be administrative and judicial conflict. In the first case, due to the review of the Labor Inspection in the case of detection of situations of law fraud due to employment contracts signed on dates very close to the date of the request in the case of force majeure or the existence of workers in a situation of activity being affected by suspension measures. In the second case, both in the case of legal challenges to express administrative resolutions not favorable to companies requesting FM ERTES or in the case of lawsuits for dismissed workers, during or after the validity of FM ERTES, due to possible non-compliance of the employment maintenance measures (art. 2 RDL 9/2020 and DA 6 of RDL 8/2020).

The 10 business trends in Labor Relations after Covid-19. (Second part)

2.- The more intensive use of teleworking and the extension of the right to adapt the schedule and reduction of the working day.With regard to teleworking, two different legal regimes must be noted: the ordinary one and the one in force in the COVID 19 emergency situation. 

In the ordinary regime, the legal regulation is very scarce and simply in art. 13 ET warns of the notes of “voluntariness” and, therefore, the need for there to be new agreements of the labor relationship to include the specialty of telework. 

In the emergency regime, the legal regulation is committed to the preferential nature of remote work (art. 5 RDL 8/2020), the company owing “adopt the appropriate measures if this is technically and reasonably possible and if the adaptation effort is proportionate ". In addition, the legislator adds that "these alternative measures should be prioritized over the temporary cessation or reduction of activity" and facilitates remote work understanding that "The obligation to carry out the occupational risk assessment in the terms provided in art. 16 of Law 31/1995, of November 8, on the Prevention of Occupational Risks, exceptionally, through self-assessment carried out voluntarily by the worker himself ”.  The new regulations foresee that teleworking is an obligation for the company and for the worker, therefore the general rule according to which teleworking can only be implemented by agreement does not apply. 

In any case, it is unquestionable that remote work (a broader formula than telework) has been revealed as a “social and labor success” in many productive sectors (telework rates skyrocket from 4% to 88% in companies ) that has allowed in non-essential sectors that do not inevitably require face-to-face modality, job continuity and a high level of productivity favored by the scenario of confinement measures. 

However, the scant regulation of telework and its intensive use both in working hours (40 hours a week) and in its subjective scope (a very large percentage of the workforce) will require future intervention by the legislator to clarify and limit the spaces that structure the digital disconnection outside of working hours; clarification on the way of recording the daily working day and the peculiarities of payment and contribution of overtime that teleworkers can do; the devaluation of voluntariness when the effective protection of safety and health at work also plays a role; etc. Likewise, the ratification by Spain of ILO Convention 177 on distance work will be necessary. 

As regards the reconciliation between work, personal and family life and in the context of the closure of educational centers during the COVID-19 period (art. 6 RDL 8/2020), the legislator has promoted the so-called Take Care of Me Plan and has included specialties of the individual right of working people to adapt the working day (change of shift; alteration of schedule; change of center; change of functions; request for remote benefit; etc.) and reduction of working hours, with the correlative salary reduction, when there are exceptional circumstances related to the actions necessary to prevent the community transmission of COVID-19 when the presence of the worker at home is necessary for the care of a spouse, common-law partner and relatives by consanguinity up to the second degree for reasons of age, illness or disability for personal and direct care as a consequence of COVID 19. In any case, it is maintained that the measure requested by the workers is justified, reasonable and proportionate.

The 10 business trends in Labor Relations after Covid-19. (Second part)

3.- The new business protocols for public and occupational health to prevent the spread of SAR-COV-2 in the workplace.

Regarding the impact of SARS-COV-2 in the workplace and from the point of view of the prevention of occupational risks (ORP), the intervention of the legislator has been scarce, although the decisions of Health Authorities in recommendations to Prevention Services, that have been updated and that oblige said Services to cooperate with the health authorities in the work centers with the general objective of limiting the spread of SARS-COV-2. 

In this new scenario, the health authorities oblige companies to reinforce personal hygiene measures, among others, hand hygiene; the respiratory tag; the 2 meter working distance; the reduction of capacity for employees and clients; and the adoption of organizational measures; techniques; and individual and / or collective protection. 

It also adds the need for companies to comply with the risk of contagion of SARS-COV-2 with the obligations of information and specific and updated training on the preventive measures that are implemented for workers; provision of personal protective equipment (PPE) or collective protection if it is not possible to maintain social distance between workers; risk assessment to prevent contagion; the identification of workers in the vulnerable groups predetermined by the health authorities who may be more exposed to possible contagion in the workplace and then carry out a health assessment and identify particularly sensitive workers and, if necessary, adapt or change the position of worker's job, etc. 

Of particular importance is the obligation of companies to carry out in relation to their workers according to the activity and function of each job and the transmission mechanisms of SARS-COV-2, an identification of three possible scenarios: (i) of exposure to risk; (ii) low risk exposure; and (iii) low probability of exposure and depending on each scenario, establish the appropriate preventive measures.

The 10 business trends in Labor Relations after Covid-19. (Second part)

In addition, it is important that companies, through their Medical Service, comply with the management protocols for possible, probable or confirmed cases of SARS-COV-2 and close contacts and of symptomatic personnel in companies and of collaboration in the management of temporary disability in the case of workers who have been infected or are in situations of preventive isolation (quarantines) who have a treatment assimilated to an accident at work (art. 5 of RDL 6/2020) and that, in addition, in the case of infections, they acquire the legal classification of occupational accidents if they derive exclusively from the provision of services in accordance with the provisions of article 156 of the General Law of Social Security . 

On the other hand, the State Labor Inspection Agency has approved a operating criterion no. 102/2020 to clarify that the competence in relation to SARS-COV-2 belongs to the Health Authorities and that, therefore, the Labor Inspectorate limits its inspection actions in case of non-compliance with the obligations of the health regulations to the report to the Health Authorities that may, where appropriate, initiate disciplinary proceedings in accordance with the General Health Law. However, for all companies the regulations for the prevention of occupational risks and the list of preventive obligations referred to there remain in force (especially those of RD 486/1997 on minimum health and safety provisions in workplaces and RD 773/1997 on minimum health and safety provisions for the use of PPE workers). And, of course, companies are obliged to comply with health regulations and preventive measures in the workplace: interpersonal distance; EPIs; measures of personal hygiene and disinfection of places and work equipment. 

The most important peculiarity in relation to the coexistence of two health and preventive regulations and two health and labor authorities, comes from the necessary correct interpretation of SARS-COV-2 as a public health risk and not as an occupational risk, therefore companies should not assume a guarantor role compliance with public health prevention obligations that may be excessive and exponentially and disproportionately open the possible list of responsibilities. In addition, although the ITSS may continue to be competent to verify non-compliance with the general regulations for the prevention of occupational risks, in the case of non-compliance with health regulations, companies will be warned first of the obligation to apply them and, in the event If the non-compliance is maintained, the Inspectors will inform the health authorities that they may apply the sanctioning measures provided for in Law 33/2011 of October 4, General Public Health. 

Finally, it should be remembered that RD 664/1997 on the protection of workers against exposure to biological agents during work It will apply to jobs in which there is a risk of professional exposure to SARS-COV-2, mainly health care services, laboratories and funeral work and therefore, it will be necessary to make an assessment of the new biological risk but, nevertheless, According to the criteria of the ITSS, it will not be necessary to carry out a strict application of art. 4.2 (periodic and constant risk assessment in the event of any change) every time there is a contagion of SAR-COV-2 from a worker with respect to the rest of the productive sectors. 

4.- The reduction of salaries and application of internal flexibility formulas: substantial modifications; off-hooking of agreements; reformulation of bonus or variable remuneration policies; etc. 

It is evident that the falls in consumption and activity have generated a dramatic decrease in income for all companies (with few exceptions) during the state of alarm and that they will last for a few months while work activity is reestablished, which will be slow and gradual. . 

As mitigating measures, in addition to those of the suspension of contracts and reductions in working hours that can be activated in the temporary employment regulation procedures (ERTEs) with the relief of the use of public resources (unemployment benefits and, in the case of force majeure, exemption from social security contributions), companies can use other complementary formulas, among others: (i) substantial modifications of working conditions that may include the remuneration system and the salary amount ex 41 ET; (ii) pay slip and other working conditions of the collective agreement ex art. 83.2 ET; (iii) company agreements that can reduce the salaries paid above the agreement; (iv) individual agreements that they can reduce wages although they can be classified as “mass pacts” that limit freedom of association rights because they are contrary to collective bargaining; (v) reformulation of variable remuneration policies o bonus by the application of the clause “rebus sic stantibus ”.

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The 10 business trends in Labor Relations after Covid-19. (Second part)
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About the Author

Carlos de la Torre Garcia

Carlos de la Torre Garcia

Attorney Of Counsel of the Labor Department of Baker & Mckenzie. Specialist in labor and Social Security advice for national and international clients.

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