The outbreak of Novel Coronavirus (COVID-19) has been considered as a worldwide pandemic

The Spanish Government has taken a string of measures to fight the spread of COVID-19 in the country.  Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers’ legal obligations and support you in protecting your business and people.

On 13 March 2020, the Spanish Government declared the «alarm status», which as per the regulations passed on 14 March, implies among other measures the following:

  1. General order to close retail commerce, with some exceptions such as food stores, drug stores or communication stores.
  2. General ban on citizen’s circulation rights all over the country. Employees are entitled to circulate to work, as one of the exceptions to said general ban.
  3. Those business that are impacted by the order to close, will be able to carry out an expedite suspension of employment based on force majeure. For those who are not impacted, it is still necessary to carry out a prior consultation period. The Prime Minister announced on March 14 that in the next days the government will facilitate the process to carry out temporary adjustments of employment, but did not disclose when this will happen. It is expected that new measures on this point will be announced after the Government Council on 17 March.

It is also expected that next week the Government will approve certain measures on the labour market (e.g. economic aids for companies, Social Security contribution benefits for companies and self-employed workers) and a subsidy benefit for working parents who have to stay at home to take care of their children due to the closure of schools all over Spain and their companies have not be able to offer them an alternative to work remotely from home.

In addition, the Spanish Government also published new regulations on the application of specific measures with regards to COVID-19, whose main regulations are the following:

  • Measures to preserve employment: the Social Security will provide special benefits for employers to enter into permanent-intermittent employment contracts (e.g. seasonal contracts, which are entered into on an ongoing basis but only for a limited number of months per year) and which cover contracts from February to June 2020.
  • Additionally, the Government has established that the preventive isolation, or infection, of employees due to COVID-19 must be treated as a temporary incapacity for accidents at work, regardless of whether the employees are infected during the provision of services and outside working time. This implies that the affected employees will be entitled to the relevant Social Security sick leave benefits for occupation hazards (if they meet the required conditions), which involves a payment of 75% of the employee’s monthly base contribution (unless the applicable CBA provides otherwise), which will be assumed by the Spanish Social Security.

All employment and labour proceedings have in general terms been suspended for the next 15 days, although proceedings of urgent filing can still be taking place (e.g. collective conflicts, violation of fundamental rights, holiday claims). Status of limitation and procedural terms are also being suspended for the duration of the status of alarm, except for proceedings on collective conflicts and breach of fundamental rights.

What are employers’ obligations in respect of COVID-19?

Whereas the initial draft of the Royal Decree contained the obligation for employers to facilitate teleworking where feasible, such obligation does not appear in the final Royal Decree which was passed by the government. Therefore such remote working remains a recommended action.

On 4 March 2020, the Spanish Ministry for Employment published a practical guide in relation to implications of COVID-19. This guide does not establish specific obligations in relation to COVID-19, but includes recommendations based on mandatory regulations regarding the prevention of occupational hazards and Spanish law.

Moreover, according to said guide, given an emergency situation like the current one (involving ‘serious and imminent risk’), companies may adopt or may be affected by the adoption of specific measures such as: (i) stoppage of the activity by decision of the company; (ii) stoppage of the activity by decision of the employees; (iii) recommendations for preventive measures; (iv) the implementation of teleworking as a temporary organizational measure; and (v) the total or partial suspension of the activity, either by decision of the Health Authorities or indirectly due to the effects of COVID-19, due to economic, technical, organisational or productive causes or derived from force majeure. Unless or until COVID-19 regulations come into force, employers should ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.

As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like COVID-19 spreading. Suchadvicemayinclude:

  • Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
  • Put used tissues in the bin immediately
  • Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
  • Try to avoid close contact with people who are unwell

We further recommend notifying employees where they can access more information if they are concerned. Detailed information on COVID-19’s recommendations and information about the virus may be found on the Spanish Ministry for Health’s website or on the Regional Health Departments’ websites.

Can employers request or require information from an employee about potential or actual exposure to the virus?

The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy and employment.  Any such data must also be processed in line with the applicable privacy requirements.  Information about an employee’s health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data.

In Spain, the Supervisory Authorities have published on 12 March 2020 some guidelines for the processing of personal data in relation to COVID-19, stating that there are sufficient legal grounds in the GDPR [articles (6.1.c, e and d) and (9.2.b,I,g,h and c)] that could be applicable in this context to allow the treatment of such sensitive data, so data protection should not be used to hinder or limit the effectiveness of measures taken by the authorities, especially health authorities, during the fight against the pandemic.

Hence, based on labour and occupational risk prevention regulations, employers may process the necessary data to guarantee employee’s health and safety, and to avoid contagions within the company and/or working places.

In any case, the processing of personal data, even during this health emergency situation, must still be carried out in accordance with the regulations on the protection of personal data.

In accordance with this new guidelines published by the Supervisory Authorities, employers may now ask their employees whether they have the virus, as well as additional queries such as asking employees to confirm that they have not: (i) visited those countries considered «red zones» and; (ii) been in contact with anyone that has the virus, based on the legitimate interests pursued by companies, provided that GDPR principles are observed, including:

  • Keeping the data obtained for a limited period of time (storage limitation);
  • Minimising the collection of data to the name and surname of the specific employee, and the country where they have been in the last month, and/or if they have been in contact with someone infected;
  • Allowing access to a limited number of people; and
  • Protecting the data with adequate security measures.

Based on this, for Spanish employers it would be possible to ask its employees if they have the virus. Additional measures, such as checking the employee’s temperature before allowing them to enter the workplace, would only be permitted if no other additional measures (e.g. remote working) are available, based on a proportionality criteria.

What should employers do if an employee is absent or infected?

Infected employees or employees who have been exposed to COVID-19

If any employee has been exposed to or infected by COVID-19, companies must immediately inform the Spanish competent authorities, who will implement the protocols provided for this situation, such as isolation of the workplace, contact those persons related to the affected person, and so on. Competent authorities will also inform the company how to proceed.

In any case, companies must inform those employees/customers/providers that have been in direct contact with the infected employee or with the employee who has been exposed to COVID-19.  Spanish regulations establish that in the event that there is a serious and imminent risk at work, the Company is obliged to inform all employees about the existence of said risk.  In our view, a communication via e-mail would be sufficient.

Any time that employees are unable to render services due to an absence (e.g. quarantine) or infection will be considered as occupational illness. The subsidy (paid by the Spanish Social Security in full) amounts to 75% of the employee’s monthly base contribution -unless the CBA provides that the company must pay additional sums to complete the employee’s full salary. The base contribution is the employee’s total monthly remuneration subject to the annually-fixed maximum and minimum limits. Currently, the maximum limit for full-time employees is 4,070.10 euro per month and the minimum ranges from 1,050.00 euro to 1,466.40 euro, depending on the employee’s professional category,

Potentially Infected Employees

In the event that the company becomes aware that an employee has been in direct contact with a person infected by COVID-19, the employee should be asked to undergo a voluntary medical examination. In case an employee confirms that he has been infected, such employee can be required to immediately abandon the work place.

In addition, the potentially infected employee may be recommended to provide services from their home (i.e. telework) and monitor their health, in order to avoid contagion in the company’s workforce.  The company can also offer telework to all staff if it wishes.  If an employee agrees, a remote working agreement should be entered into before they commence teleworking.

Refusals to work or travel

Unless mandatory remote working is declared in the next days, the company can use its management power to force employees to work and render services in person at the workplace. This order has a presumption of legality, so in the beginning the employees would have to comply and, if appropriate, subsequently make a claim. However, please note that Spanish Government has strongly recommended that companies should allow teleworking for those employees whose functions can be carried out from home.

The risk of this approach is that, if employees consider that the performance of their duties carries a serious and imminent risk to their lives or their health, they can challenge the employer’s decision before the social jurisdiction and claim compensation for damages (based on the provisions of the Law on Prevention of Occupational Risks). The Courts will assess the existence of a «serious and imminent» occupational risk after analysing whether the following three requirements concur simultaneously: certainty that damage will take place, severity of damage and immediacy of the risk situation.

Moreover, if rendering services at the company’s premises involves a serious and imminent risk of infection by COVID-19, the employees can stop their activity and leave immediately the workplace. Likewise, the employees’ representatives may agree the interruption of the activity. In that case, the company cannot retaliate against the employees.

We further note that, the Government has declared a global closure of schools and Universities for the next 15 days until 29 March. In this scenario, regarding those employees that must take care of their children – thus preventing them working – Spanish case law considers that the employer is not obliged to pay the salaries during such an absence because the cause of the absence is not attributable to the employee. On 12 March 2020, the Spanish Government announced that -will provide those parents who have been affected by this measure with an extraordinary subsidy that will be published in the following days –detailed regulation will be published next week.

What are employers’ obligations where offices are partially or fully closed?

  • If the Company decides to suspend employment contracts based on force majeure causes or an official health alert, or economical, technical, productive or organizational reasons arising from the situation, the Company will not be required to pay the corresponding salaries, provided that the Company follows the specific procedure for suspension of contracts and there are real causes. However, the Company will have to keep paying Social Security contributions unless the government authorises an extraordinary exemption –which has not been confirmed yet; and
  • If the Company decides to suspend work on its own initiative and it does not follow the legal procedure to suspend the contracts, the absence of the employees must be treated as paid leave.

Where can employers and employees access local and national advice?

Additionally, Spanish Authorities recommend that employees should only travel when it is strictly necessary. Consequently, in case of business trips the health area of the companies or the occupational hazards prevention service must assess the specific risk of the trip and the possible contact with cases of COVID-19, and will provide the appropriate recommendations, following the guidelines and recommendations made by the Health Authorities.