Exceptional measures Royal Decree-Law 6/2020
11th March 2020
Author- Ricardo Acosta Fernández
Today, the Royal Decree Law 6/2020 of 10 March was published in the Official State Gazette, adopting certain urgent measures in the economic field and for the protection of public health.
In its fifth article, the situation assimilated to an accident at work is considered to be exceptional when workers are isolated or infected as a result of the COVID-19 or coronavirus.
“1. For the purpose of protecting public health, periods of isolation or infection of workers caused by the COVID-19 virus shall be considered, exceptionally, as a situation assimilated to an accident at work, exclusively for the economic benefit of temporary incapacity of the social security system.
2. In both cases, the duration of this exceptional benefit will be determined by the part of leave for isolation and the corresponding registration.
3. The right to this benefit may be exercised by the self-employed or employed person who is registered with any of the Social Security schemes on the date of the event causing the illness or isolation.”
Previously, criterion 2/2020 on the consideration as a situation of Temporary Incapacity derived from common illness of the periods of preventive isolation suffered by the workers as a result of the new type of virus of the Coronaviridae family, known as SARS-CoV-2, established that the workers affected by the application of the protocols established by the Health Authorities and who may be affected by preventive isolation to avoid risks, could see their situation considered as Temporary Incapacity derived from common illness. It is true that workers are not strictly speaking affected by an illness or accident, but they must be monitored and receive the corresponding health care in order to diagnose their condition and that they are prevented from working, for obvious reasons.
The difference between being considered an accident at work or an occupational disease, and a common illness in this situation of isolation and surveillance, is more of a financial and welfare nature. Nothing changes with regard to the diagnosis, but it does change with regard to the treatment and economic and assistance benefits. As regards treatment, the mutual insurance companies for accidents at work and occupational diseases may now have a derivative as regards the medical treatment of workers. As for economic and assistance benefits, accidents at work and occupational diseases have economic benefits through delegated payment from the first day, unlike the sections established for benefits derived from common illness or non-occupational accident.
The aim of this is to ensure that workers are better protected at the medical and healthcare level. The companies will pay in the salary receipts the benefits derived from the Temporary Incapacity, and the same will be deducted, in the amounts that correspond in each contingency, in the Social Security that will pay the following month. In this way, the aim is to compensate the absences of workers that occur due to the protocols of action of the Health Authorities. The compensation is for the company and the worker, through the corresponding delegated payments of the benefits. The companies must maintain the improvements of the Temporary Incapacity benefits established legally or conventionally, or those that the workers have been receiving as an acquired right.
Perhaps this is not so new, since Article 169 of the General Law on Social Security has already taken into account those periods of observation are considered temporary incapacity, to which we can refer in this case to diagnose or highlight an illness in the event of an epidemic or to prevent it or control its effects.
However, in order for this to be carried out, the corresponding procedure must be carried out with the family doctors or with the mutual insurance company. In order for a process of Temporary Incapacity to be initiated, the doctor must issue the corresponding discharge report, and the subsequent confirmation reports until the patient is discharged. Said reports must be delivered to the company within three days of the issue of the same by the doctor.
What happens when workers have to be absent from work due to the closure of schools or educational institutions?
In this and similar situations, the absence is not caused by disease or the protocols established by the Health Authorities. It would not be a situation comparable to that described in the previous paragraphs, nor would it fall within the scope of Royal Decree Law 6/2020 of 10 March, adopting certain urgent measures in the economic field and for the protection of public health. It does not follow from the spirit of the regulation, on reading the explanatory memorandum, that the legislator intends to extend the consideration of periods of isolation or infection of workers as a result of the COVID-19 virus as a situation assimilated to an accident at work. We must therefore abide by what has been said, and any other absence from work that does not fall within the case described may be considered justified but unpaid absence.
Notwithstanding the above, we are faced with a regulation of minimums, which may be weighted and/or improved by each company or organization according to previously established criteria or collective bargaining.