LEGAL MEASURES TAKEN BY THE SPANISH GOVERNMENT REGARDING THE COVID-19

1) ALARM STATUS (March 13^th)

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

• General order to close retail commerce, with some exceptions such as food stores, drug stores or communication stores.  
• 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.
• 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 called ERTE. For those who are not impacted, it is still necessary to carry out a prior consultation period.

In addition, the Spanish Government also published new regulations on the application of specific measures with regard to COVID-19, as follows: 

• 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.
• 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?

On March 4^th 2020, the Spanish Ministry for Employment published a practical guide in relation to implications of COVID-19 proposing the implementation of teleworking as a temporary organizational measure.

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. Such advice may include:

• 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 wàter 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. 

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

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.

On March 12^th 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.

2) THE CONSEJO DE MINISTROS (GOVERNMENT CABINET), AS OF, TUESDAY MARCH 17^th 2020, REINFORCES THE MEASURES OF THE ECONOMIC SHOCK PLAN BEFORE THE COVID-19. SUMMARY OF THE LIST OF THE      MEASURES APPROVED:

Mobilization of 200.000 million euros for:

Employment protection measures to face COVID-19:

• For employees, we will allow them to reduce their working hours by up to  100% to meet the needs of reconciliation and care arising from this crisis.
• We will establish teleworking as the main flexibility measure, when circumstances allow it.
• We will promote the ERTEs by making them more flexible.
• The ERTEs caused by Covid 19 will be considered force majeure, and workers will be entitled to unemployment benefits.
• In the case of ERTEs, the employer will be exonerated from the employer's contribution to social security.
• Making access to the cessation of activity more flexible for the self-employed and the collection of benefits in the event of economic difficulty.

Measures to support companies before the COVID-19:

• Creation of a line of public guarantees of up to 100.000 million euros to inject between 150.000 and 200.000 million euros in our economy.
• Additional guarantee lines of 2.000 million euros for exporting companies and SMEs.
• Measures to facilitate the restructuring of loans to farms affected by drought.
• Programmes to support the digitalisation and R&D of SMEs, which will facilitate the implementation of teleworking.
• Specific scheme for the suspension of public contracts, with extended deadlines and compensation for salaries, to prevent job losses.
• Preventing, by means of a regulatory reform, companies from non-EU countries from controlling Spanish entities in strategic sectors.

Measures to support families that are vulnerable to the COVID-19:

• 600 million granted to social services with special attention to the elderly and dependents.
• Protection of energy and water supplies, guaranteeing essential public services.
• Guaranteeing telecommunications services.
• Moratorium on mortgage payments for people in particularly vulnerable situations

Measures to support scientific research in the face of COVID-19:

• 30 million granted to the Consejo Superior de Investigaciones Científicas and the Instituto de Salud Carlos III with the necessary resources to deal with this health emergency.

3) On March 27^th 2020 the Government Cabinet (Consejo de Ministros) decided to prohibit dismissals during the coronavirus crisis.

4)   On March 31^st the Spanish government has halted all non-essential activity and businesses and, therefore, the employees of those companies shall stay at home from March 31st until next April 9th, both included.

The employees affected by such provision will get their normal monthly salary, as set out in the "recoverable compulsory permit leave scheme", and the recovery of those working days are to be agreed with the company.

Essential services will continue and include transportation, banking, foodstuffs, pharmaceuticals, and healthcare, among others.

Barcelona, March 31^st 2020