Garrigues: Workers in non-essential services will be compelled to take recoverable paid leave

Sunday March 29, 2020

This measure will not apply to the activities and cases listed in the annex to the royal decree-law, or to employees who are already working remotely or employees of any companies that have already applied for or are implementing a temporary layoff with suspension of contracts or are authorized to carry out a temporary layoff with suspension of contracts while the leave set out in this royal decree-law is in place.

The government has passed  Royal Decree-Law 10/2020, in force since its publication date, which establishes the obligation to take recoverable paid leave, between March 30 and April 9 2020 (inclusive), for workers providing services at public and private companies and institutions, whose activities have not been halted by the declaration of the state of emergency.

Excluded from its scope of application, however, are workers:

• Who provide services in the sectors classed as essential in the annex to the royal decree-law.
• Who provide services in divisions or lines of production with activities classed as essential in the annex.
• Hired by (i) any companies that have applied for or are implementing a temporary layoff with suspension of contracts and (ii) any that have been authorized to carry out a temporary layoff with suspension of contracts while the recoverable paid leave is in place.
• Who are on sick leave or whose contracts have been suspended on any of the other grounds in the law.
• Who may continue carrying on their activities as normal by teleworking or using any remote working mechanism.

The terms of the recoverable paid leave are summarized below:

• Workers will retain entitlement to the compensation they would have earned ordinarily, including basic salary and pay supplements.
• The recovery of working hours may take place between the day following the end of the state of emergency and December 31, 2020. This recovery must be negotiated in a consultation period commenced for this purpose between the company and the workers’ legal representatives, which is allowed to last for up to 7 days.
• The decree-law sets out the mechanisms for selecting the workers’ representatives and for the consultation period. During the consultation period, the parties must negotiate in good faith, with a view to reaching an agreement.
• Any agreement that is reached may set out the terms for recovery of all or part of the working hours, the minimum notice that must be given to the worker of the date and time for performance of the resulting work, together with the reference period for recovering unfulfilled working hours.
• If no agreement is reached in that consultation period, the company will notify the workers and the representative committee,  within 7 days from the end of that period, of the decision on recovery of the hours of work not performed during that leave.
• The recovery of hours cannot result in failure to comply with the daily or weekly minimum rest periods, the establishment of a notice period shorter than that set out in article 34.2 of the Workers’ Statute, or the worker going over the maximum number of annual working hours, and workers’ rights related to a work-life balance must be observed.

Any companies that have to put in place the recoverable paid leave may, if necessary, establish a minimum number of workers or the shifts that are strictly necessary to keep indispensable activities running. These activities and this minimum number of workers or shifts will be based on those in place over a normal weekend or on public holidays.

Where an immediate interruption of activities is impracticable, the workers falling within the scope of the royal decree-law may provide services on Monday, March 30,  2020, though only for the purpose of carrying out any tasks strictly necessary to be able to bring the recoverable paid leave into effect without causing irreparable or disproportionate harm for the resumption of business activities.

Added below is the annex to the royal decree-law, with the list of workers not eligible for the recoverable paid leave.

 

ANNEX

The paid leave defined in this royal decree-law shall not apply to the following employed workers:

1. Any working in activities that must continue operating under articles 10.1, 10.4, 14.4, 16, 17 and 18, of Royal Decree 463/2020, of March 14, 2020, declaring a state of emergency for managing the COVID-19 public health crisis and under the legislation approved by the competent authority and the delegated competent authorities.

2. Any working in activities that play a part in the supply chain to the market and in the operation of services of production centers for essential goods and services, including food, beverages, animal food, hygiene products, medicinal products, medical devices or any product necessary for the protection of health, and allow the distribution of them from their origin to their final destination.

3. Any providing services in hospitality and restaurant activities who provide home delivery services.

4. Any providing services in the chain of production and distribution of goods, services, health technology, medical materials, protective equipment, healthcare and hospital supplies, and any other materials necessary for the provision of healthcare services.

5. Those who are indispensable for keeping in operation the production activities of the manufacturing industry providing the supplies, equipment and materials necessary for the correct running of the essential activities contained in this annex.

6. Any carrying out the transport services, for both passengers and goods, that have remained in operation since the declaration of the state of emergency, and those needed to ensure maintenance of the modes employed for this purpose, under the legislation approved by the competent authority and the delegated competent authorities since the declaration of the state of emergency.

7. Any providing services at correctional, civil protection, maritime rescue, rescue and fire prevention and extinguishment, mining safety, and traffic and highway safety institutions. Additionally, any working at private security firms providing security transport services, alarm response services, discontinuous rounds or surveillance, and those that may need to be used for the performance of security services to ensure that essential services and supplies reach the population.

8. Any indispensable individuals supporting maintenance of the materials and equipment of the armed forces.

9. Any belonging to healthcare centers, services and establishments, as well as individuals who (i) care for the elderly, minors, dependent persons or persons with disabilities, and individuals working at companies, research, development and innovation centers, and biotechnology companies related to Covid-19, (ii) the animal houses associated with them, (iii) the running of skeleton services at the facilities associated with them and the companies supplying the products needed for that research, and (iv) the individuals working in funeral services and other related activities.

10. Any belonging to animal health centers, services and establishments.

11. Any providing services at outlets for sales of the press, and at media organizations or news agencies owned publicly or privately, and in their printing and distribution processes.

12. Any belonging to financial services firms, including banking, insurance and investment services, for the provision of services that are indispensable, and the activities specific to payment infrastructure and the financial markets.

13. Any belonging to telecommunications, audiovisual or essential computer services firms, together with any networks or infrastructure that support them and the sectors or subsectors necessary for their correct operation, in particular any that are indispensable for the adequate provision of public services, and the functioning of remote working by public employees.

14. Any providing services related to protection and care of victims of domestic violence.

15. Any working as lawyers, court procedural representatives (procuradores), personnel administrators (graduados sociales), translators, interpreters and psychologists and any assisting procedural activities that have not been suspended by Royal Decree  463/2020, of March 14, 2020 declaring a state of emergency for managing the COVID-19 public health crisis and, therefore, fulfilling the essential services determined by mutual agreement between the Ministry of Justice, the General Council of the Spanish Judiciary, the Public Prosecutor’s Office and the autonomous communities with powers in this area and set out in the Decision by the Secretary of State for Justice on March 14,  2020, and any adaptations that may be ordered.

16. Any providing services at law and advisory services firms, administrative services and personnel administration firms, and external and in-house occupational risk prevention services, in urgent matters.

17. Any providing services at notaries’ offices and registries to fulfill the essential services determined by the Directorate-General for Legal Certainty and Attestation.

18. Any proving cleaning, maintenance, urgent breakdown repair, and surveillance services, and any providing services related to collection, management and treatment of hazardous waste, or of, hazardous or non-hazardous, urban solid waste, collection and treatment of wastewater, decontamination activities and other services for waste management and the transport and removal of byproducts, or at any of the entities belonging to the public sector, under article 3 of Law 9/2017, of November 8, 2017, on public sector contracts.

19. Any working at refugee centers and temporary accommodation centers for immigrants, and at privately-managed public entities subsidized by the secretary of state for immigration and operating in the context of international protection and of humanitarian support.

20. Any working in activities for the supply, cleaning, transport, purification and treatment of water.

21. Any that are indispensable for the provision of weather observation and forecasting services and the processes associated with maintenance, surveillance and control of operating processes.

22. Any belonging to the operator designated by the government to provide the universal postal service, for the purpose of providing collection, admission, transportation, classification, distribution and delivery services exclusively to guarantee that universal postal service.

23. Any providing services in sectors or subsectors participating in the import or supply of healthcare materials, such as logistics, transport, storage, customs forwarding (forwarding agents) and, generally speaking, any participating in healthcare corridors.

24. Any working in the distribution and delivery of products acquired online, by phone or by mail order.

25. Any others providing services that have been classed as essential.