The “labor shield” is already black on white in the Official State Gazette (BOE). This Tuesday the decree was published with the second package of measures and aid for those affected by DANA, which President Pedro Sánchez explained yesterday, and which regulates the initiatives of the Ministry of Labor to protect employment and working people. . Among the initiatives, highlights include leave to be absent with 100% of salary, an extension of ERTE and restrictions on dismissal.
The decree sets out the details of the entire labor shield, with the fine print on the conditions under which workers can take advantage of these paid permits that allow them to be absent from their job with full salary and that will not require recovering hours not worked. Or what happens if companies break the approved limitations to avoid layoffs due to the catastrophe.
Leaves with 100% of salary
Non-recoverable paid leave, to be absent from work with 100% of salary and without having to make up days, may be one of the most innovative measures in the face of the catastrophe and that have attracted the most attention. Also, the one that has raised blisters in the CEOE employers’ association, with criticism from its leader, Antonio Garamendi.
The causes related to DANA that give the right to these paid permits, “while they last”, are:
a) Impossibility of accessing the workplace or performing work, as a consequence of the state of the roads, public transport or the workplace, or as a consequence of orders, prohibitions, instructions, recommendations or requirements made by civil protection authorities, unless remote work is possible.
b) Work on moving, cleaning or conditioning the habitual residence, and recovering belongings and other personal effects, until a stable and adequate housing solution is available, as well as carrying out the procedures to obtain official or public documents. that can only be carried out in person by the worker.
c) Disappearance of family members, understood as the spouse, de facto partner or relative up to the second degree by consanguinity or affinity, including the blood relative of the de facto partner, as well as any other person other than the above who lived with the person. working person at the same address, without prejudice to the provisions of the following paragraph.
d) Death of family members. The duration of leave for death regulated in the Workers’ Statute will extend “from the causative event until the five business days following the funeral.”
e) Attention to care duties derived from the DANA with respect to the spouse, de facto partner or relative up to the second degree by consanguinity or affinity, including the blood relative of the de facto partner, as well as any other person other than the above who lived with the worker at the same address.
It will be understood that “duties of care” occur when the presence of the worker is necessary to care for these people who, “for reasons of age, illness or disability, need personal and direct care as a direct consequence of the DANA.” Also when there are, “related to adverse meteorological phenomena, or their effects, decisions adopted by the competent authorities that imply the closure of educational centers, or of any other nature, that provide care or attention to the person for whom care duties apply. ”.
These duties of care exist “when the person who, until now, had been habitually responsible for the direct care or assistance of the spouse or family member up to the second degree of the worker could not continue to do so for justified reasons directly related to the DANA.”
It is important to highlight that this right to 100% paid leave for care “is an individual right of each parent or caregiver,” the decree states.
All of them are “non-recoverable paid permits” and are retroactive from October 29, when “the initial causing event” took place, the DANA. Thus, although “it occurred prior to the entry into force of this royal decree-law”, the period from that day until the end of the cause that justifies the permits “will be considered effective working time.” If a company has forced workers to take vacations, leaves of absence or other types of measures to be absent from work due to DANA, staff can demand that they be recognized as days worked.
Null dismissals: reinstatement and paying salaries not enjoyed
The decree establishes that “the adoption of any unfavorable measure for the worker derived from the exercise of the rights of absence”, of these 100% paid permits, “will be classified as null.” That is to say, in the event of dismissal, its nullity would imply the right to reinstatement of the workers and the payment of the salaries not received during this time.
Labor has also approved restrictions on layoffs due to DANA. Specifically, it is regulated that “the companies benefiting from the direct aid provided for on the occasion of the DANA”, as well as those that take advantage of the extraordinary ERTE derived from the DANA, “will not be able to dismiss due to force majeure and for economic reasons. , technical, organizational and production derived from the aforementioned atmospheric phenomenon.”
Failure to comply with this obligation not to dismiss “will lead to the reimbursement of the aid received and the qualification of the dismissal as null,” the rule contemplates.
In the case of fixed-discontinuous contracts, the ETOP and force majeure causes derived from the DANA will not justify the end of the period of activity nor the failure to call the worker. Therefore, these should be included in the ERTE that companies request.
In cooperatives, the number of jobs in the cooperative cannot be definitively reduced or the proportion of professional qualifications of the group that makes up the cooperative modified for economic, technical, organizational or production reasons or in the case of force majeure.”
‘Mecuida’: request a reduction in working hours 24 hours before
As was done during the pandemic, the Ministry of Labor has once again approved the so-called ‘Mecuida’ Plan, which will allow workers to adapt or reduce their working hours, even up to 100% in this second case, to care for minors and other family members. (when the requirements for the paid leave explained above are not met).
The decree includes the fine print of the extraordinary ‘Mecuida Plan’ by DANA, with exceptional measures such as that the reduction of special working hours may be communicated to the company “24 hours in advance” and that it may reach “100%” of the day if necessary.
“In the case of reductions in working hours that reach the entire working day, the right of the worker must be justified and be reasonable and proportionate in response to the situation of the company,” the standard indicates.
The right not only reaches workers in the municipalities affected by DANA, but also “when the recipients of care” reside there, “or the duty of care arises from the consequences of DANA in those localities.”
70% of the salary throughout the ERTE
This second package of measures has expanded the ERTE already recognized in the first aid decree, both with regard to aid to companies – which can save 100% of social contributions in ERTE for economic reasons derived from the DANA –, as well as for workers, with more protection, such as the right to receive 70% of the contributory benefit throughout the entire file.
To expedite the processing of contract suspensions and reductions in working hours due to force majeure, the reports from the Labor Inspection will be “optional” without affecting the subsequent verification of the legal requirements.
The decree also regulates extraordinary unemployment protection for domestic workers. “When the labor provision inherent to the family home service cannot be carried out totally or partially, on a temporary basis and due to the situation derived from the DANA, the total or partial suspension of the employment contract or the reduction of the working day will proceed,” which entitles these workers to specific unemployment protection.
In companies affected by DANA, teleworking (“remote work”) will be the preferred form of work organization when the state of the communication networks allows it. It will also be a right applicable to working members of cooperatives, even if their statutes have not provided for it.
At this link you can consult the decree published in the BOE, with all the details of the measures.
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