22 April 2020

Analysis of the employment measures of Royal Decree Law 15/2020 of 21 April on urgent complementary measures to support the economy and employment

After a month and a half of confinement, today, Wednesday 22 April 2020, the new Royal Decree Law 15/2020 of 21 April on urgent complementary measures to support the economy and employment (the "RDL 15/2020") has been published.   

RDL 15/2020 incorporates new economic and social measures focused on supporting businesses and workers to continue to counteract the impact of COVID-19. The objectives of the measures are to reduce the operating costs of SMEs and the self-employed, to strengthen the financing of companies, to extend support in the fiscal field, to facilitate the adjustment of the economy, and to protect employment.

In the employment field, the following provisions are noteworthy: 

Extension of the preferential nature of teleworking and the right to adapt the established hours and reduction of working time. (Article 15).

The validity of those aspects established in Articles 5 and 6 of Royal Decree Law 8/2020 ("RDL 8/2020") of 17 March and the amendment of Article 6, with the aim of continuing to guarantee the safety and protection of workers, is extended for two months (starting from the month after the end of the validity of the declaration of the state of alarm), the preferential nature of teleworking working, as well as the right to adapt the timetable and reduce the working day time. 

Legal situation of unemployment due to the extinction of the work relationship during the probationary period produced during the state of alarm (Article 22).

The group of employees receiving unemployment benefit is extended. In this sense, it is considered that any termination of the employment relationship during the probationary period at the request of the company, produced from March 9, 2020, will be considered as a legal situation of unemployment regardless of the cause for the termination of the previous employment relationship.

Also, unemployment coverage is extended to those workers who voluntarily terminate their last employment relationship on or after 1 March 2020, because they have a firm commitment to sign an employment contract with another company, if this last one has withdrawn from the contract as a result of the crisis arising from COVID-19. The legal situation of unemployment is accredited by means of a written communication from the company to the employee withdrawing from the labour contract committed as a consequence of the COVID-19 crisis. 

Amendment of RDL 8/2020, of 17 March, on extraordinary urgent measures to deal with the economic and social impact of COVID-19 (partial force majeure). (Final Provision VIII).

The definition of force majeure is limited to activities that must be maintained in accordance with the declaration of the state of alarm. Force majeure shall be understood to include suspensions of contracts and reductions in working time applicable to the part of the activities not affected by the aforementioned conditions of maintenance of the activity.

Also, RDL 8/2020 gives greater protection to employees with permanent discontinuous contracts (Article 25, section 6) for/as:

  • Employees with discontinuous permanent contracts and those who carry out permanent and periodic work that is repeated on certain dates, who are in a period of inactivity; 
  • Employees whose services are interrupted and as a result become beneficiaries of unemployment benefit may return to receive it, with a maximum limit of 90 days, when they are once again legally unemployed;
  • Employees, who prove that they were unable to resume their activity on the date scheduled and were beneficiaries of benefits at that time. If, on the date on which they should have returned to work they were not receiving unemployment benefits because they had exhausted them, but they can prove that they had paid the necessary contributions, they will be entitled to such benefits; and 
  • Workers who have ceased their activity and have not completed the necessary period of contribution will be entitled to a new benefit, with a maximum limit of 90 days. The amount will be equal to the last monthly payment of the contributory benefit received, or, if applicable, to the minimum amount of the contributory benefit.

Suspension of deadlines within the scope of action of the Labour and Social Security Inspection (Additional Provision II).

In line with the suspension of deadlines and judicial and administrative actions, the deadlines governing the functioning and actions of the Labour and Social Security Inspection are suspended, with the exception of cases in which the intervention of the Social Security Inspection is necessary to guarantee the protection of the general interest or because they are related to the COVID-19, i.e., verification actions and those requests and stop orders derived from situations closely linked to the facts justifying the state of alarm, or those which, due to their seriousness or urgency, are indispensable for the protection of the general interest.
In accordance, the periods of limitation for actions to demand responsibility for compliance with social jurisdiction and Social Security regulations are also suspended, as are the periods for the imposition of sanctions because of infractions, and those for settlement proceedings. 

Amendment of the revised text of the Law of Infractions and Sanctions in the Social Order (Ley sobre Infracciones y Sanciones en el Orden Social, the "LISOS"), approved by Royal Legislative Decree 5/2000 of 4 August (Final Provision III):

Article 23 is partially amended and a paragraph 3 is added to Article 43 of the LISOS to cover the penalty for making false or inaccurate statements or providing, communicating or recording information which results in the employee obtaining or enjoying benefits improperly, and to provide for an employer's liability involving direct reimbursement by the employer of benefits improperly received by its employees, where there is no malice or fault on their part.

Amendment of Royal Decree Law 9/2020, of 24 March, adopting complementary measures, in the field of employment, to mitigate the effects of COVID-19. (Final Provision IX):

Amendment of Additional Provision II, so that the sanctions for those companies that submit applications containing false or incorrect information are reinforced. Companies conduct consisting of requesting measures in relation to employment that are not necessary or have insufficient connection with the original cause will also be subject to a penalty, when this circumstance is deduced from the false or incorrect data provided by the them and provided that it results in the generation or receipt of undue benefits or the application of undue deductions from Social Security contributions.

Undue recognition for reasons not attributable to the same will result in the refund of the unduly generated benefits. Measure that can be enforced, until the infringement’s prescription.

Likewise, the employee will keep the right to the salary corresponding to the period of employment regulation initially authorized, discounting the amounts that would have been received as unemployment benefits. 

Amendment of Royal Decree-Law 11/2020 of 31 March, adopting additional urgent measures in the social and economic field to deal with COVID-19. (Final Provision X):

Article 35 on the delay in the payment of Social Security debts is amended by modifying the resolution procedure. The deferment would be formalized as follows: companies and self-employed workers covered by any Social Security scheme, will be entitled to this benefit, provided that they have no other deferment in force, and that the deadline for payment takes place between April and June 2020. 

Additionally, it will be applicable with the following particular features:

  • Interest of 0.5%.
  • Applications must be made within the first 10 calendar days of each of the entry deadlines.
  • Deferment will be granted by means of a single resolution, regardless of the months involved, and will be amortized by means of monthly payments and will determine an amortization period of 4 months for each monthly payment requested as from the month following that in which it was issued, without exceeding 12 monthly payments.
  • The request will determine the suspension of the collection procedure until the corresponding resolution is issued.

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