Royal Decree-Law 10/2020 was passed on 29 March, regulating recoverable paid leave for workers who do not provide essential services, in order to reduce personal mobility in the fight against COVID-19.
This law was drawn up, passed and published in a very short space of time. It was announced last Saturday, published late on Sunday and went into force on the following day, meaning the organisations affected had to make decisions based on information not officially verified, on Sunday.
To sum up, the law requires all workers affected to take mandatory recoverable paid leave from 30 March through 9 April 2020, inclusive. The intention is to stop people from travelling to their workplaces, limiting economic activity to sectors deemed essential in said law.
Here are the most important issues to take into account:
I. Regarding the personal scope of application, meaning the workers affected:
• The law applies only to workers who are not self-employed. Therefore, according to the letter of the law, the situation of self-employed workers has not changed from the situation prior to the application of this regulation. For these workers, the limitations established in Royal Decree 463/2020 apply.
• This logically generates some uncertainty, as a professional working on contract to another organisation must take this leave but the same professional, as a self-employed worker, could continue working. It is, therefore, very unclear how the law will be enforced by law enforcement agents.
• Self-employed workers are advised to carry proof of this status if they choose to continue working and must commute or travel to a workplace.
• Telecommuting is allowed. Any workers that are able to continue working normally from home should not stop. The purpose of the limitation is solely to prevent people from leaving their homes.
• Nor does this mandatory leave apply to individuals on contract with companies that have applied for or are in the process of applying for and implementing a temporary lay-off plan during the period in which this leave applies (ERTE).
• Nor does it apply to workers who are on sick leave or whose contracts have been suspended on other legal grounds. Meaning, workers whose contracts were suspended, as of 30/03/2020, due to sickness, accident, paternity or maternity (among others) shall continue with the suspension in place and not be entitled to any additional leave at a later date.
II. Regarding the sectors the law deems essential.
The recoverable paid leave established in this Royal Decree-Law shall not apply to the workers employed by companies working in the following activities:
1. Those carrying out activities that must continue being carried out as per the provisions of articles 10.1, 10.4, 14.4, 16, 17 and 18 of Royal Decree 463/2020, of 14 March, declaring the state of emergency to tackle the situation caused by COVID-19, and the regulations passed by the Competent Authority and Delegated Competent Authorities.
2. Activities involved in the market supply chain and operations of services to centres producing goods and services considered basic necessities, allowing for distribution of said goods and services from their origin to final destination.
3. Services in the hospitality and restaurant sector that provide home delivery.
4. Services in the chain of production and distribution of goods, services, healthcare technology, medical materials, protective equipment, healthcare and hospital equipment and any other materials needed to provide healthcare services.
5. Any activities that are essential to maintaining production activities in the manufacturing industry that provide supplies, equipment and material needed to properly carry out the essential activities in this annex.
6. Transport services, of people or goods.
7. Prison services, law enforcement, coast guard, fire rescue, prevention and fighting services, mine safety, and road safety and traffic services. Also, individuals working in private security firms.
8. Activities providing support to maintain material and equipment for the armed forces.
9. Healthcare centres, services and establishments, as well as individuals who:
(i) care for seniors, minors, dependent or disabled individuals, and people who work at companies, R&D centres and biotechnology firms working on COVID-19,
(ii) work at related animal facilities,
(iii) run the skeleton crew at related facilities and companies that supply products needed for research, and
(iv) provide funerary services or other associated activities.
10. Veterinary care centres, services and establishments.
11. Points of sale for press and media outlets or agencies, private or publicly owned, as well as printing and distribution activities.
12. Financial services companies, including banking, insurance and investment, to provide essential services, and activities involved in payments and financial markets.
13. Telecommunications and audiovisual companies and firms providing essential computer services, as well as any networks or infrastructure supporting them and the sectors or subsectors needed for them to operate properly.
14. Services associated with protecting and caring for victims of gender-based violence.
15. Lawyers, barristers, solicitors, social workers, translators, interpreters and psychologists assisting in legal activities not suspended by Royal Decree 463/2020, of 14 March, declaring the state of emergency to tackle the situation caused by COVID-19.
16. Services to law firms and legal services, administrative management firms and social workers, and internal and external occupational health and safety services, for urgent matters.
17. Notaries public and registries in order to comply with essential services established by the Directorate-General for Legal Affairs.
18. Cleaning and maintenance services, urgent repairs and security, as well as services to collect, manage and process hazardous waste, hazardous and non-hazardous solid urban waste, wastewater collection and treatment, remediation activities and other waste-management services, transport and removal of subproducts or at any organisations in the Public Sector.
19. Refugee asylum centres and temporary housing centres for immigrants and privately run public bodies subsidised by the Secretary of State of Migration and operating under the framework of international protection and humanitarian efforts.
20. Activities to supply, purify, channel, make drinkable or treat water.
21. Essential activities to provide weather forecast and observation services and processes associated with maintenance, security and monitoring of operating processes.
22. Any belonging to the operator designated by the State to provide universal postal service, for the purpose of providing collection, admission, transport, sorting, distribution and delivery services exclusively to guarantee said universal postal service.
23. Any sectors or subsectors that participate in importing and supplying medical material, such as logistics, transport, storage and forwarding agents or, in general, any participating in healthcare corridors.
24. Distribution and delivery of products acquired online, by phone or by mail.
25. Any others providing services that have been classified as essential.
For a more thorough list, see the Annex to the Royal Decree on the activities exempt from the mandatory recoverable paid leave.
III. Regarding the conditions of the recoverable paid leave:
• For the duration of the recoverable paid leave, workers will continue to receive full remuneration, both their base salary and any extras they are entitled to.
• The hours of recoverable paid leave can be made up from the end of the state of emergency through 31 December 2020. Companies must negotiate with the workers’ representatives to find a way to make up the hours, respecting the criteria laid out in the regulation.
When these hours are made up, this must not, at any time, breach regulations on minimum periods of daily or weekly rest provided for by law or in the applicable collective bargaining agreement, nor be established without at least 5 days’ notice or exceed the maximum number of annual hours worked asset in the appropriate collective bargaining agreement.
IV. Regarding tasks required for orderly shutdown of activity.
In those cases in which it is impossible to immediately cease activity, the workers included in the scope of this Royal Decree-Law may render their services on Monday, 30 March 2020, with the sole aim of carrying out essential tasks in order to implement the recoverable paid leave without prejudicing in a disproportionate or irremediable fashion the subsequent resumption of the business activity.
At Kreston Iberaudit, we can inform and guide you through the negotiation process, when the time comes, working to make it as efficient and agile as possible.
We are at your disposal to provide any further information or clarification you may need.