The “shield of labor” is already in black and 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, as President Pedro Sánchez explained yesterday, and which regulates the initiatives of the Ministry of Labor to protect employment and the workers. Among the initiatives, the highlights include absence leave with 100% of salary, extension of ERTE and restrictions on dismissal.
The decree details the entire labor shield, with the fine print on the conditions under which workers can benefit from these paid permits which allow them to take time off from work with their full salary and which will not require recovery of unworked hours. . Or what happens if companies don’t follow approved limitations to avoid disaster layoffs.
Leave with 100% of salary
Non-recoverable paid leave, to be absent from work with 100% of salary and without having to make up days, is perhaps one of the most innovative measures in the face of the disaster and which has attracted the most attention . Also, the one that raised light bulbs within the employers’ union CEOE, with the criticisms of its leader, Antonio Garamendi.
The causes linked to DANA which give right to these paid permits, “while they last”, are:
a) Inability to access the workplace or carry out work, due to the state of roads, public transport or the workplace, or due to orders, prohibitions, instructions, recommendations or requirements issued by civil protection authorities, except remote work is possible.
b) Moving work, cleaning or conditioning the habitual residence, and recovery of goods and other personal effects, until a stable and adequate housing solution is available, as well as taking steps to obtain documents official or public which can only be carried on one’s person. in person by the worker.
c) Disappearance of family members, understood as the spouse, the de facto partner or a 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 those above having lived with the person who works 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 by the Workers’ Statute will extend “from the causal event up to five working days following the funeral”.
e) Pay attention to the duties of care arising from the DANA with regard to the spouse, the de facto partner or a 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” arise when the presence of the worker is necessary to care for those people who, “by reason of their age, illness or disability, require personal and direct care as a direct result of DANA”. Even when there are, “related to adverse weather phenomena, or their effects, decisions adopted by the competent authorities which imply the closure of educational centers, or of any other nature, which provide care or attention to the person to which the care obligations apply. “.
These duties of care exist “when the person who, until now, was usually responsible for the care or direct assistance of the spouse or a member of the worker’s second degree family could not continue to do so for justified reasons directly related to DANA.”
It is important to emphasize that this right to 100% paid childcare leave “is an individual right of each parent or guardian,” specifies the decree.
All are “non-recoverable paid permits” and are retroactive to October 29, the date the “initial triggering event” took place, according to DANA. Thus, even if “this occurred before the entry into force of this royal decree-law”, the period from this day until the end of the cause justifying the authorizations “will be considered as effective working time “. If a company has required its workers to take vacation, time off, or other types of measures to take time off work due to DANA, staff can demand that they be recognized as days worked.
Void dismissals: reinstatement and payment of salaries not appreciated
The decree establishes that “the adoption of any measure unfavorable to the worker arising from the exercise of the rights of absence”, of these 100% paid permits, “will be qualified as void”. That is to say, in the event of dismissal, its nullity would imply the right to reinstatement of workers and payment of wages not received during this period.
Labor also approved restrictions on layoffs due to DANA. Concretely, it is regulated that “companies benefiting from the direct aid provided for under the DANA”, as well as those which benefit from the extraordinary ERTE derived from the DANA, “will not be able to dismiss workers for reasons of force”. major and for economic, technical, organizational and production reasons derived from the aforementioned atmospheric phenomenon.
Failure to comply with this dismissal obligation “will result in the reimbursement of the aid received and the dismissal being qualified as void”, provides the rule.
In the case of fixed-term and discontinuous contracts, the ETOP and the causes of force majeure derived from the DANA will not justify the end of the period of activity nor the worker’s failure to appeal. Therefore, these should be included in the ERTE requested by companies.
In cooperatives, the number of jobs in the cooperative cannot be definitively reduced nor the proportion of professional qualifications of the whole which makes up the cooperative modified for economic, technical, organizational or production reasons or in case of force major.
‘Mecuida’: request a reduction in working hours 24 hours before
As has been the case 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 take care of minors. and other family members (when the requirements for paid leave explained above are not met).
The decree includes the fine print of DANA’s extraordinary “Mecuida Plan”, with exceptional measures such as that the reduction of special working hours can be communicated to the company “24 hours in advance” and that it can achieve “100%” of the day if necessary.
“In the case of reductions in working hours that reach the entire working day, the worker’s right must be justified and be reasonable and proportionate to the situation of the company,” the standard states.
This right affects not only workers in the municipalities concerned by DANA, but also “when the beneficiaries of care” reside there, “or the duty of care arises from the consequences of DANA in these localities”.
70% of salary throughout the ERTE
This second package of measures expanded the ERTE already recognized in the first aid decree, both with regard to aid to businesses – which can save 100% of social contributions in the ERTE for economic reasons derived from the DANA -, as well as to workers, with more protection, such as the right to receive 70% of the contributory benefit throughout the file.
To speed up the processing of contract suspensions and reductions in working hours due to force majeure, Labor Inspectorate reports will be “optional” without affecting the subsequent verification of legal requirements.
The decree also regulates extraordinary unemployment protection for domestic workers. “When the work 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 work will proceed”, which entitles these workers to specific protection against unemployment.
In the companies concerned by DANA, teleworking (“remote work”) will be the preferred form of work organization when the state of the communication networks allows it. This will also be a right applicable to worker members of cooperatives, even if their statutes do not provide for it.
On this link you can consult the decree published in the BOE, with all the details of the measures.
