Without being alarmed, it should be pointed out that the current situation in Spain is not comparable to the situation in Italy. On February 25th, in view of the spread of contagion, Italy decided to regulate urgent measures for homeworking in companies by approving in the official gazette measures applicable to workplaces in the 11 municipalities and in the six regions at risk (Lombardy, Veneto, Friuli Venezia Giulia, Emilia-Romagna, Liguria, Piedmont). These measures will initially remain in force in Italy until March 15th, 2020.
However, our Employment team at Simmons has begun receiving enquiries about the problems raised by the COVID-19 in Spain.
Can a worker decide to stop going to the workplace in the affected cities?
At the moment, we consider that there is no justification for absence, and disciplinary action may be taken against workers who take unauthorised leave.
The situation could change in a matter of days and it is hoped that the Ministry of Employment would adopt measures similar to those adopted in Italy.
In the undesirable event that the COVID-19 spreads and no immediate legislative measures were taken, the worker may invoke the risk to his health and Article 21.2 of the Law on the Prevention of Occupational Risks to justify his absence from work or remote working: , "the worker shall have the right to interrupt his activity and leave the workplace, if necessary, when he considers that such activity poses a serious and imminent risk to his life or health". In anticipation of this, many companies are updating/revising their remote work policies/tools to adapt to this situation.
Can the Employee decide unilaterally to telework?
No, at the moment (and unless company policy provides otherwise) homeworking would require the consent and agreement of the employer before it can begin.
What happens if an employee gets infected or quarantined?
If an employee is confirmed as infected, this would result in temporary disability leave, but what about quarantine? Preventive isolation is a situation that is not expressly covered by our legal system. To deal with this situation, the D.G. for Social Security Organisation has issued Criterion 2/2020, which basically "reuses" the May 2009 resolution issued on the occasion of avian influenza (influenza A H1 N1) which, as now, required periods of forced isolation to prevent its spread.
In accordance with this resolution, the periods of preventive isolation to which workers are subjected as a result of Covid-19 will be considered as a situation of temporary incapacity derived from common illness. This means that those affected will be entitled to corresponding temporary incapacity benefits.
Unless the employee's agreement or the company's policy on the matter states otherwise, those affected will receive full pay for the first three days of leave, since this is established by law. From the fourth day and until the 20th day, they will receive 60 % of their regulatory base salary, except - again - if the agreement or company policy provides for some improvement. This is likely to be the case for those in quarantine for coronavirus, since the quarantine period established for this epidemic is, so far, 14 days.
One issue raised by a client is that an employee in quarantine cannot go to the mutual insurance company to obtain his sick leave. It must be regulated as a matter of urgency.
Can an employee be required to provide services if he is quarantined - without symptoms - at home?
Since the government has compared quarantine to temporary disability, an employee cannot be required to continue to provide services from home even if he or she is not experiencing symptoms.
Can a company in Spain suspend its activity as a result of COVID-19?
Yes, as long as the company accredits the concurrence of objective causes (for example, impossibility of continuing production due to lack of parts that should have come from China) or force majeure linked to the COVID-19, and follows the procedure and formalities provided for in Article 47 of the Workers' Statute and implementing regulations.
Further information to help employers deal with the outbreak of the coronavirus across our international network available here
