On Sunday 29th March, late in the evening and with entry into force on the same date, Royal Decree Law 10/2020 of 29th March was published in the Official State Bulletin, regulating recoverable paid leave for employees who do not provide essential services, in order to reduce population mobility in the context of the fight against COVID-19.
The purpose of the regulation is to limit as much as possible and reduce the mobility of the population in order to minimise the levels of propagation and contagion by the COVID-19 virus, all as a consequence of the health alert for the virus and the current state of alarm decreed by the Government.
The following is a preliminary and urgent assessment of the impact on the production activity of the companies, without this note going in to make an analysis of labour aspects and specifically the figure of recoverable paid leave.
The subjective scope of application of this regulation is that of employees of companies whose activity has not been halted by Royal Decree 463/2020, thus indirectly affecting their employers.
In the second section of Article 1, the Royal Decree-Law refers to the Annex, which includes certain sectors of activity that are classified as essential and in respect of which productive activity must be maintained (understood as manufacturing and services), always in accordance with the principles of
(i) provision of essential and indispensable services;
(ii) minimum mobility of people to workplaces and;
(iii) provision of work, whenever possible and preferably, under the telework system or any other non-present modality.
A complete reading of the Annex of the aforementioned Royal Decree-Law is recommended in order to identify the activities excluded and, “a sensu contrario”, those that would be subject to these limitations or temporary suspension of face-to-face productive activity. You can access this regulation through the following link: Royal Decree-Law 10/2020, of 29th March, which regulates recoverable paid leave for employees who do not provide essential services, in order to reduce population mobility in the context of the fight against COVID-19.
One of the questions that employers can ask themselves regarding the interpretation of the scope of this restriction and how they are affected is especially focused on those who carry out activities that are complementary and/or auxiliary to the so-called essential activities and/or “outsourcing” services of certain functions or services that are included in the production chain or the performance of essential activities.
It should be noted that certain activities in the Annex also limit the activity in general to what is considered “indispensable”, as is the case, for example, in the financial and insurance sector. In addition, the end of the month and the beginning of the month are usually complicated and have some increase in activity beyond the ordinary.
It cannot be ruled out that this emergency rule will be specified and developed, and to this end the corresponding authorisation to the Ministry of Health has been established in article five:
“Article 5. Adaptation of activities.
The Minister of Health, in his capacity as the delegated competent authority, may modify or specify, by means of the necessary orders, the activities that are affected by the recoverable paid leave provided for in this article and its effects”.
As indicated, these services should be provided as much as possible in a “telematic” way or with “telematic” procedures, but in those cases where it is not possible to perform them in this way, they should be performed in person, recommending the establishment of a “minimum” checkpoint to attend to indispensable services and/or emergencies. For this reason, our suggestion is that, at each work centre, a telephone service should be available (better if technically the telephone service can be diverted to avoid physical presence at the work centres) and a minimum for the attention and operational maintenance of the computer systems – with provision for travel to the facilities only if necessary – and a service checkpoint that can also be available and moved to the work centre if necessary. As indicated above, the aim is to protect the health of all persons who, in the event of carrying out on-site activities, must travel to the work centres, adopting all the necessary protection measures.
It should be borne in mind that Article 4 of the Royal Decree-Law regulates the minimum essential activity, establishing that it will be held on an ordinary weekend or on public holidays:
Article 4. Minimum essential activity.
The companies that must apply the recoverable paid leave regulated in this article may, if necessary, establish the minimum number of staff or the shifts that are strictly indispensable in order to maintain the indispensable activity. This activity and this minimum number of staff or shifts shall have as a reference that maintained in an ordinary weekend or on public holidays.
All other activities that are not indispensable, urgent and/or essential must be suspended in order to be carried out once the recoverable paid leave ends, which in principle the government has set from 30 March to 9 April, both inclusive. However, it is not ruled out that this period could be extended depending on the circumstances.
For workers affected by this cessation of work activity in person, this new tool called “recoverable paid leave” will be used, and it is quite possible that it will be the subject of complementary regulation in more than one regulation to “correct” possible gaps, defects and/or inefficiencies.
We recommend providing employees who are going to provide these minimum on-site services with a “reinforced safe-conduct” personalised with their name and ID card and with a signature and/or stamp from the company explaining or certifying this situation of inclusion within the essential activities, and if it is necessary to make an extraordinary or unscheduled trip, to support it in something that can be evidenced by the worker to the authority that might require such accreditation, for example an e-mail, a “WhatsApp” message, or an SMS message.
In any case, each company will have to innovate according to its circumstances, with logic and common sense, which the law does not regulate.
We consider that, applying the sense of the rule, logic and common sense, it is difficult for a supervisory action -or even a sanctioning- (of any kind of authority) to prosper against companies that exceptionally maintain that minimum of activity to give auxiliary support to the Essential Services of their clients, as long as it is reasonably accredited:
(i) that it is an activity subject to the provision of essential services;
(ii) in auxiliary or complementary activities to Essential Services, that this has been explicitly requested in writing to the company by the client subject to Essential Services, either generically or, better still, each request for a specific service;
(iii) the situation of minimum essential service and/or urgency and;
(iv) that the resource (personnel) used by the company is proportionate and appropriate to the situation (always under the principle of minimum intervention) and with the adoption of all possible measures of prevention and protection of the health of the workers who are affected and have to provide this service, in order to avoid contagion.
Each company should analyse whether it should adapt its communication policy to its clients, suppliers, contractors, transporters and/or employees regarding this situation of reinforced confinement in order to explain (and understand) this new scenario and inform them that
(i) its activity must be restricted or limited to the Essential Services of the Royal Decree-Law, with each specific request having to be expressly and unequivocally expressed by the Customer;
(ii) understand that the usual periods of activity and/or response may be slowed down in certain cases with respect to normal operations.
It is recommended, as far as possible, to group or accumulate certain services (e.g. courier services for the distribution and delivery of products) in order to be as efficient as the situation allows and, at the same time, to try to provide maximum security and protection to the health of the people involved in these essential and/or emergency service processes, whether they are employees or third party collaborators (couriers, etc.).
It is recommended to contact the clients in the production chain of the essential activity or service and to agree on the applicable service levels (or adapt them, if there is a service level agreement, or they are affected), as well as to coordinate the form of delivery of products or provision of the services (and if necessary resolution of incidents and exceptional actions).
On the other hand, we understand that each company will have to plan internally the work and equipment of the people affected (either for retention or for paid leave). In addition, the people affected must be informed of their personal situation during this exceptional situation of paid leave or minimum service provision (equipment, activities, shifts, schedules, etc.).
The Royal Decree-Law includes a transitional provision, which is transcribed at the end of this note, and although it is designed for industries that cannot immediately stop their productive activity (steelworks, etc.), we believe that it could provide protection to certain companies for the purposes of this reorganisation, planning and establishment of the minimum essential and/or urgent services, provided that this action cannot be planned or carried out remotely and with effects limited to Monday 30 March.
“First transitory provision. Guarantees for the resumption of business activity.
In those cases in which it is impossible to immediately interrupt the activity, workers included in the subjective scope of this Royal Decree-Law may provide services on Monday 30 March 2020 with the sole purpose of carrying out the essential tasks in order to make the recoverable paid leave effective without irremediably or disproportionately harming the resumption of the business activity”.
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