The situation created by the Coronavirus in the last few days has caused some uncertainty about the measures to be adopted by companies and employers, both at the productive level and at the working level. If the collateral consequences directly affect the organization and economy of the companies, the level of affectation and consequences that it can have in the labor relations is not less important, being these last ones a priority as far as the human component contained in the labor and professional services.
In the European Union, concern has already been expressed about the health alert created, and although there are protocols for action at many levels, the restriction of freedom of movement would directly affect labour relations in companies, preventing workers from travelling to the workplace and, in most cases, from actually providing services.
Before looking at the purely labour-related consequences, let us look at preventive actions within the framework of labour relations. Article 21 of Law 31/1995, of 8 November, on the Prevention of Occupational Risks, regulates the adoption of measures by companies in a situation of “serious and imminent risk“. Faced with this situation, there is an obligation to act immediately to eliminate or reduce the risk, including stopping the activity if necessary.
When workers are exposed to a serious and imminent risk in the course of their work, the employer must follow the procedures established for this purpose, from informing the workers concerned, to the measures taken to protect the health and integrity of the workers. These measures shall include the necessary instructions to enable workers to stop work and to leave the workplace immediately, without any obligation on their part to return as long as the danger persists. If the employer does not take the above measures “motu proprio“, the workers’ representatives may agree, on a collective basis, to stop the activity of the workers affected by the serious and imminent risks.
On an individual basis, Article 14 of the Law on the Prevention of Occupational Risks confers the right on the worker to interrupt his work activity and leave the workplace if the activity involves a serious and imminent risk to his life or health.
The adoption of the above measures implies a guarantee of compensation for workers who have taken the decisions established for that purpose in the prevention rules, and they may not suffer reprisals or disciplinary sanctions, unless they have acted in bad faith or committed serious negligence.
A serious and imminent occupational risk is a risk which is reasonably likely to materialise in the immediate future and which may cause serious harm to the health of workers. According to point 4 of Article 4 of the Law on Prevention of Occupational Risks, the following must be given simultaneously: certainty of the occurrence of the damage, the seriousness and immediacy of the risk situation.
With regard to the consequences for the provision of services arising from the contractual employment relationship, a health alert situation would lead to the suspension of employment contracts and the obligations arising therefrom.
The legal framework in which we situate the case is based on the suspension of the employment contract regulated in Article 45 of the Workers’ Statute (Royal Legislative Decree 2/2015, of 23 October, approving the revised text of the Workers’ Statute Law). Such suspension exempts from the reciprocal obligations to work and to remunerate work, and the article establishes a series of causes that would lead to the suspension of the employment contract. Some causes are of a force majeure nature, although none expressly contain health reasons arising from epidemics, pandemics or diseases. It is in Article 47 of the same legal text where we find the suspension derived from force majeure, establishing the procedure and reference standards that could be applicable to the case.
The suspension of contracts in a massive way due to health alerts would be an unprecedented situation in our country, and without precedent of some consideration, which is why the legislator has not expressly provided for it. This does not mean the absence of regulation, but rather the analogous treatment of critical and similar situations that our legal system does offer. Article 45.1.i) establishes “temporary force majeure” as a reason for the suspension of an employment contract, which could perfectly well be applied to cases of force majeure of a health nature when dealing with cases of fact whose circumstances have their origin in situations of gravity external to the organization, of an extraordinary nature and independent of the will of the employer and the workers, and which affect the effective provision of services by causing the suspension of the contract.
Another case in which a health alert such as the one discussed could be included would be the suspension of the employment contract due to temporary force majeure, under the protection of section 1.i) of Article 45 of the Spanish Constitution. What distinguishes force majeure as a cause for the suspension of employment contracts is that it constitutes an event outside the circle of the company and, as such, extraordinary, independent of the will of the employer with regard to the consequences that it entails for the provision of the work. It is true that the procedure indicated in the rules with regard to the communication to the Labour Authority through application and means of proof, and the communication to the workers’ representatives, could be directly altered if we are faced with the impossibility of carrying it out due to the nature of the health alert, which would not invalidate the suspension. If the health alert is not generalised and the measures are taken in specific and localised geographical areas, it would be done in accordance with the procedure established by means of a request to the Labour Authority, which in five days will issue the appropriate resolution.
Having said that, in a situation of quarantine or movement restrictions that prevent people from going to work and providing services, we would be facing a justified absence, without cause attributable to the worker or the company. Such absence would be justified and unpaid, since the absence of effective provision of services does not entail the accrual of any payment. However, through the negotiating capacity of the parties to the employment relationship, measures can be agreed to compensate for working time not carried out during the period of restricted movements. It is possible to establish what is known as an “hour exchange“, which is a form of irregular distribution of the working day allowed for exceptional cases, or to compensate them with the days of free disposal established in the collective agreements or agreements. We must bear in mind that an effective working time compensation mechanism would allow companies to recover productivity levels and consequent income, and workers to recover wages lost during the suspension.
What is not feasible, unless expressly agreed between the parties, is to compensate for these days of absence with the days of leave still to be taken, since leave is paid rest days expressly provided for in the rule for the enjoyment of workers. If, for reasons of force majeure, it is impossible to provide paid services, they cannot be considered as enjoyment similar to days of holiday if the enjoyment is not effectively available to the worker, and in a situation of enforced restriction there is neither choice nor effective availability.
Restrictions on movement may affect workers’ families, which would prevent the effective provision of services indirectly. Workers must justify or prove such a circumstance in order for the absence to be considered as paid or unpaid. As an example, the spouse who works in health centres and is professionally obliged or is quarantined because of the health alert, the closure of the children’s schools, the contagion of the disease from family members, etc. We would be faced with justified absences, some paid and others not, but personal obligations and responsibilities take priority in a health alert situation such as the one described in these lines. Jurisprudence establishes that in situations of force majeure, parents and not other persons must watch over them (STSJ Galicia, Sala de lo Social 1492/2019, 28 May). The closure of schools would justify a possible absence of the workers, and the company could not act in a disciplinary way, if it is demonstrated that it is impossible to leave them in the care of others or that a situation of risk exists.
For those activities that allow it, it is always advisable to work remotely. The use of information technologies in the context of an employment relationship may mean that the provision of services does not require direct physical presence in the workplace. In certain situations, such as the one we are discussing here, working from home is a very reasonable alternative for companies and is not difficult to plan or agree upon. In this respect, there is a specific regulation, based on Article 34 of the Workers’ Statute, which in point 8 refers to the provision of distance work for better reconciliation of family and working life. In the case in question, we are facing a health alert, and therefore there is greater and obligatory cause for the adoption of measures that favour the provision of labour services in the absence of risk and danger to the health and physical integrity of workers.
Lupicinio International Law Firm
C/ Villanueva 29
T: +34 91 436 00 90
F: +34 91 587 24 99
Ricardo Acosta Fernández