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Temporary suspension of contracts? ¿ERTE or ERE? ¿ Layoffs? Coronavirus! Covid 19! Do you know how to act?
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Our Labor Law Firm will be able to advise your company or you as a worker in labor situations related to the Coronavirus.
What to do if a Coronavirus situation occurs in my company?Our ERTE Lawyers in Madrid will advise you in the best possible way
Companies can and must adopt organizational or preventive measures that temporarily avoid situations of social contact, without the need to paralyze their activity.
However, and when this is not possible, in accordance with Article 21 of Law 31/1995, of November 8, 1995, on Occupational Risk Prevention (LPRL), and with regard to the risk of contagion by coronavirus, when workers are or may be exposed to a serious and imminent risk in the course of their work, the company shall be obliged to:
a) inform as soon as possible about the existence of such risk,
b) take the necessary measures and give the necessary instructions so that, in the event of serious, imminent and unavoidable danger, the workers can interrupt their activity and, if necessary, leave the workplace immediately. In application of this rule, companies must proceed to stop work activity in the event of a risk of contagion by coronavirus in the workplace, notwithstanding the activation of measures that allow the development of work activity in an alternative way or, if necessary, the adoption of measures for the temporary suspension of activity, in accordance with the provisions of labor regulations.
What labor alternatives exist for companies?
If the company finds it necessary to suspend its activity totally or partially, either by decision of the Health Authorities or indirectly due to the effects of the coronavirus on the normal performance of its activity, it may do so in accordance with the mechanisms provided for in the current labor regulations and for the causes contemplated therein -article 47 of the Workers' Statute and Royal Decree 1483/2012, of October 29, approving the Regulations on the procedures for collective dismissal and suspension of contracts and reduction of working hours-.
A company could see its activity affected by the coronavirus due to organizational, technical or production causes, among others:
a) Due to the shortage or total lack of supply of elements or resources necessary for the development of the business activity as a consequence of the affectation by the coronavirus of supplier or supplying companies.
b) Due to a decrease in demand, the impossibility of rendering the services that constitute its object or an excess or accumulation of manufactured products, as a consequence of the decrease in activity on the part of client companies.
The temporary employment record may be of total or partial suspension or reduction of the working day, as long as the productive, technical or organizational cause does not affect the totality of the hours or days of work performed by the worker.
Force majeure, for the purposes of the temporary regulation of employment, is generally understood as that generated by involuntary, unforeseeable facts or events, external to the circle of the company and which make the work activity impossible.
Effects of the Suspension of Social Security Contracts
During the suspension of the contract due to economic, technical, organizational or production causes, or due to force majeure, the company must keep the employee in the company and pay the employer's contribution and the managing entity must pay the employee's contribution. However, according to the RDL approved on March 17, the company is exonerated from paying the contribution for issues related to the suspension of contracts due to Coronavirus.
Situation of the worker during the suspension
Workers are in a legal situation of unemployment when their employment relationship is temporarily suspended, or the ordinary daily working day is temporarily reduced by decision of the employer for economic, technical, organizational or production reasons or due to force majeure, or by virtue of a judicial decision adopted in the context of a bankruptcy proceeding.
Depending on whether the case is processed for "force majeure" or for "economic, technical or organizational causes" the processing is different. In the first case it is more accelerated.
Basically, it will be necessary to communicate to the workers' representatives, the labor authority, the existence of the cause, accompanied by a report and different labor documentation, the details of which can be extensive.
Who to turn to?
G.Elías y Muñoz Lawyers has a department of Labor Lawyers that will be able to help you in the ERTE, ERE or temporary suspension of contracts as a consequence of the Coronavirus.
Contact us at any of our offices in Madrid
Our Labor Lawyers, specialized in Labor Law, will be able to offer you our professional services in advising you on issues related to the Coronavirus.
Our Labor Lawyers in Madrid and our ERTE Lawyers in Madrid will advise you on the steps and procedures to be followed at all times.
Is the company obliged to inform its employees about protective measures regarding Coronavirus?
As established in article 29 of the Law on Occupational Risk Prevention, companies are recommended to give instructions to their employees, reminding them that they also have the duty to ensure their safety and health, as well as those of people who may be affected by their activity, and must cooperate with the company to ensure safe working conditions.
The company should remind workers of the individual protection measures recommended by the Ministry of Health, with, for example, visible signs in workplaces, photographs or infographics provided by the health authorities.
Can my employer force me to travel to an area at risk? Can I refuse?
No, workers have the right to interrupt their activity when it involves "serious and imminent risk to their life or health". In fact, Coronaviridae are mentioned in Royal Decree 664/1997 on the protection of workers against risks related to exposure to biological agents, but their "classification may not be in line with their real danger," adds the expert.
As for the second question, he details: "The worker's refusal to obey the order to travel to a danger zone could be considered as the legitimate exercise of the worker's right of resistance and not as a punishable disobedience, born of a subjective appreciation".
Do I have to inform my employer if I travel to a risk zone?
Just as the company must inform, the employee also has a duty. "Yes, the employee has a duty to inform the company because he/she has a duty to cooperate with the company in health and safety matters. Therefore, if a worker omits this information, he will be in breach of his obligations in terms of risk prevention and may be subject to disciplinary sanctions (according to Article 29.3 of the LPRL). This includes the imposition of misdemeanors or even dismissal, which, although in this case would be disproportionate, according to the expert would be considered appropriate.
In case of infection, what is my employment status?
There are two situations: if I have been infected, I am on sick leave and, therefore, as a worker, I should not and cannot work. "In the case of being in preventive isolation as a consequence of the coronavirus, the worker will be considered to be in a situation of temporary incapacity derived from common illness.
Can the prevention service make public a list of affected persons?
According to the Spanish Data Protection Agency (AEPD) the company cannot be provided with information on health-related data unless the express consent of the workers is obtained. "The prevention services of the companies cannot make public a list of possible infected persons; in fact, they must not grant more information than that provided for in Article 22.4 of the LPRL, i.e. on examinations carried out in relation to the aptitude for the performance of the job or the need to introduce or improve the protection or prevention measures.
Can they ask me for a medical report?
The company cannot force a worker to present a medical certificate to know if he/she has COVID-19 or any other pathology", "nor can it fire a worker for not providing these medical reports".
The Ministry of Labor has issued an action guide to curb the epidemic of coronavirus in the workplace. In the document, companies are asked to stop the activity if there is a risk of contagion in the workplace, provided that there is a "serious and imminent risk" that includes an assessment based on "reliable facts". To "avoid situations of social contact", companies are encouraged to implement teleworking..
Can Spain take up this telework measure as effective?
"Spain is not a country where teleworking is abundant, but is one of the European countries with the lowest rate of both occasional and regular teleworking," says Rimbau. In a crisis situation like the current one, haste can cause problems. "It is very difficult for companies that do not have teleworking practices to implement it as a matter of urgency. In fact, the companies that have started to use this model in the current alert situation are because they already had teleworking policies more or less in place and have simply expanded them," says the expert.
"Implementing it in a company that has never had it before is very difficult because it requires policies, technology and a managerial quality that they do not improvise," she adds. The "emergency" telework in the face of a possible pandemic will be "costly and probably will not give the expected results, and therefore, it could be thought that it does not work".
Rimbau warns, "what does not work is unplanned teleworking; what would be desirable is that, before the health situation leads to a general call for teleworking, planning should begin in all companies to implement it successfully".
If I am healthy, can they force me to telework?
«The measure must be agreed between the worker and the company, telework cannot be imposed by the company nor can it be imposed by means of article 41 of the Statute of the worker or by collective agreement. The worker has the right to decide since this change implies modifications in the contractual regime. To render the services from home, instead of rendering them from the work center, means that a part of the work activity is carried out without company supervision and this cannot be imposed.
If I have been infected at work, is it considered an occupational contingency?
«In general and with some exceptions, the courts have determined that situations caused by flu or equivalent viral processes derive from common illness, even with respect to health personnel».
To be considered as an occupational disease or occupational accident, it must arise from the consequences of the work performed, due to the action or the elements indicated for each occupational disease, and be recognized in the list of statutory occupational diseases.
Can they force me to be isolated?
«Yes, they can if the health authorities so decide», experts say. The authorities can adopt control measures such as «preventive isolation», known as quarantine, when there is a danger to the health of the population and to avoid the risks of contagion.
«These workers in preventive isolation are not affected by an accident or an illness, but are being monitored and receiving health care in order to diagnose their condition and, for these reasons, they are prevented from going to work». Even so, according to the criteria adopted by the Social Security, these workers are considered to be in a situation of temporary disability, i.e. on sick leave, and therefore exempt from working.
If my company does not give me work because of COVID-19, will I get paid?
«When it comes to catastrophic causes or force majeure, as the COVID-19 epidemic could be considered, and the company is unable to assign work to the employee, the employee may not receive his or her salary». Thus, the work activity could be paralyzed, a collective dismissal procedure could be initiated, or a suspension of contracts or reduction of working hours (ERTE) could be initiated.
We will advise you properly whether you are an employee or a company.
Our Labor Lawyers, will know how to advise you in ERTE, ERE or suspension of contract whether you are a company or individual in relation to situations of Coronavirus.
Trust in ours lawyers specialized in Labor Law..
Our lawyers specialized in Labor Law
A team of lawyers specialized in Dismissals led by our partner Mr. Vicente García Elias.
For more than 25 years we have provided services for dismissals and positions of responsibility with excellent results having obtained important indemnities.
We have had the largest companies in Spain and their Law Firms as the opposing party having obtained in most of the occasions optimal results.
We know how to approach your case and for this we have an important team of lawyers that will help you.
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