Businesses: obligations in the face of the coronavirus ✔
The first thing any employer should know is that they hold a position of responsibility regarding the rights to physical, mental, and moral integrity of their employees when they are working for someone else. This means that, just as diligent monitoring of existing workplace risks must be carried out routinely through their analysis and the implementation of necessary preventative measures, the same must be done in the event of a possible COVID-19 infection.
Therefore, the first thing the company will have to do is contact its contracted Occupational Risk Prevention Services (PRL) and request all the necessary guidelines for their specific implementation within the company. It will also be vital that both the employer and the employees adhere to the recommendations and protocols approved by the Ministry of Labor and Social Economy, as well as those approved by the Ministry of Health.
What specific obligations do companies have in the face of the coronavirus?
To answer this question we have prepared a checklist of elements to consider that may serve as a guide for addressing the issue:
✔ Request the guidelines to follow from a preventive point of view from the occupational risk prevention service.
✔ Development of an internal protocol available to all workers on how to proceed and the different measures to implement in the various scenarios that may occur: from the mere risk of contagion to the actual contagion of the staff.
✔ In case of suspected infection, consult with the Workers' Legal Representatives or directly require the workers to undergo appropriate medical checks with our OSH services in accordance with current legislation.
✔ If you belong to a sector exposed to a high risk of contagion, provide the necessary Personal Protective Equipment (PPE) or collective equipment, whether this includes masks, gloves, suits, etc…
✔ If we collaborate with other companies in the development of our activity, we will have to coordinate our preventive activity with that of the other companies that work in our workplaces or vice versa, maintaining a constant flow of information and agreeing on the protocols for action for preventive purposes or in case of infection.
✔ If the company has workers who are currently working abroad or who need to travel abroad, they should avoid areas with a high risk of contagion (according to information provided by the WHO or the Ministry of Labor and Social Economy) and even order the return or repatriation of these workers until the risk of contagion is eliminated, if necessary.
✔ In the event that the transfer of the worker is non-extendable, information on preventive measures and guidelines to follow must be provided, and the coordination of preventive measures with the destination company of said worker, if there is one, must be carried out.
What organizational contingencies might I encounter in the ordinary operation of the company?
During the course of the Coronavirus health crisis, we may very well face different organizational situations depending on each circumstance. Therefore, we offer a list of possible business responses to various needs that may arise.
1.- Requests for reduction and adaptation of working hours within the ordinary working hours of the worker for childcare.
When faced with a request for a reduction or adjustment of working hours for childcare, we must consider the organizational interests of the company, the requesting employee, and the rest of the workforce, if there are other similar requests. The law requires the company to negotiate these requests individually with the employee. If the work falls within the employee's regular working hours, the employee may choose when to perform the work.
2.- Applications for adaptation without reduction of working hours outside of the ordinary working hours or with the teleworking modality.
When faced with a request for a simple adjustment of working hours to care for children under 12 years of age or immediate family members without a reduction in working hours, we must consider the organizational interests of the company, the requesting employee, and the rest of the workforce, if there are other equivalent requests. The law requires the company to negotiate these requests individually with the employee within a maximum period of 30 days.
Other solutions for companies affected by the coronavirus
3.- Count periods of absence from work as vacation time.
Under this arrangement, employees will not be required to work and will continue to receive their full salary. We will need to consider whether this option is useful for organizational purposes, as many companies have very specific seasonal periods for taking vacations.
4.- Leave of absence for childcare.
Given the closure of schools, parents can request a leave of absence for childcare under Article 46.3 of the Workers' Statute. The maximum duration of this leave is three years from the date of birth or adoption, but there is no minimum, meaning that the employment contract could be suspended, with job security, by the unilateral decision of the parent of a child between 0 and 3 years old.
In these cases, the leave of absence could coincide with school closures. Article 46.3 of the Workers' Statute does not require prior notice to the company, and therefore, it could be requested immediately. The company must respect this right to work-life balance. No salary or social security benefits would be paid during the suspension of the contract for this reason. The employee bears the financial cost.
The same job is reserved for the first year, and a position within the same professional group is reserved for the second and third years. It could be considered that the leave of absence for family care under Article 46.3 of the Workers' Statute, with a duration of two years, could be used for the care of children over 3 years of age in this situation.
5.- Employment Regulation Files and Temporary Employment Regulation Files.
In the event that the impact on the company's activity is such that the company is paralyzed, it may resort to a Workforce Adjustment Plan. In the event that it has to carry out dismissals and these affect a specific number of employees, it may apply partial reductions in the working hours of the workers and even suspend them, thereby avoiding the accrual of wages.
This solution will in any case require negotiation with the workforce and parallel communication to the Competent Labor Authority and this negotiation must last a maximum of 15 days.
Ramón Salvat
Specialist in Employment and Social Security Law
Specialist in Labour Procedural Law