Coronavirus - Employment law update - Spain

• Spain

• Coronavirus - Workforce issues
• Employment law

22-04-2020

Overview

Our previous briefing on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the CoVID-19 outbreak. In this briefing we address some of the more common questions raised by Spanish employers.

General Principles

Spanish employers should:

• Monitor and follow advice and guidance from relevant authorities such as the World Health Organisation (“WHO”), the Spanish Health Ministry and other relevant Spanish Government guidance (http://mscbs.gob.es/).
• Assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home).
• Inform their employees and, where relevant, recognised unions about their proposed measures.
• Review their need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved.
• Review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance.
• Review relevant insurance policies and guidance issued by their insurers.
• Update contact details for staff and management.
• Devise arrangements for dealing with staff who have to travel abroad or who may be at particular risk of contracting CoVID-19 or who have symptoms.

1. Employer’s duty of care – what does the law in Spain say?

Employers (in coordination with the prevention service) in Spain have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at the workplace of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.

Regulations require employers to undertake a suitable, proportionate and sufficient assessment of the risks to the health and safety of employees and anyone else who may be affected by the employer’s business. This duty is a continuing one. Employers must ensure that privacy requirements and requirements regarding the dignity of the employees are adhered to and also the confidentiality of all information related to their health status. In addition, the Regulations contain specific provisions in relation to young employees and pregnant women.

Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, the Spanish Health Ministry or the WHO. This would include conducting risk assessments (in coordination with the prevention service) to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

Some Spanish businesses have started to provide personal protection equipment to their staff, such as alcohol wipes and hand sanitizers, with additional measures for staff at higher risk of exposure to CoVID-19, for example, those in contact with medical patients or visitors from high-risk regions.

Employers should inform employees about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing and any other practices in the workplace).

Employers may also consider implementing measures to screen visitors to their premises, for example requiring them to certify that they have not recently visited a high-risk area. In that sense, some employers in Spain are providing employees with a questionnaire in order to gather information about potential risks of infection. However, it is important to note that employee consent if required for such practice and must only be carried out where there is a reasonable and real risk of infection, in order to guarantee the health and safety of all employees in the workplace.

If an employer fails to implement appropriate measures then it will potentially leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis that doing so would place them in “serious and imminent danger”.

Employers should consider implementing protocols to deal with employees under mandatory quarantine; who have self- quarantined; who have travelled to high risk destinations; who propose going on holiday to such destinations; or who appear to be at risk or are ill, potentially with CoVID-19.

Employers may wish to assemble a project team with members specialising in employee relations; workplace communications, occupational health (prevention service), insurance; travel and events. That team should work together on developing appropriate protocols in order to guarantee the health and safety of the employees at the workplace.

Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of claims.

In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees or the employees´ legal representatives; and explain the steps they are taking to monitor the situation and comply with their prevention obligations.

2. Business travel – should travel be restricted?

Employers may also consider implementing policies to minimise the risk of employees catching CoVID-19 in the workplace, for example health screening questionnaires for staff members returning from abroad and delaying or cancelling non-essential business travel and meetings.

The Spanish Government currently advises against travelling to any other country/territory unless it is strictly necessary, including, of course, the high-risk areas as a result CoVID-19.

As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business.

These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate.

In considering whether staff should still travel, employers should consider: 1) the purpose of the travel and whether there is alternative, 2) the latest government and international guidance, 3) guidance from their occupational health advisor and the prevention service and 4) available measures to mitigate risk.

3. Flexible working - can an employer require staff to work flexibly?

Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties. Staff contracts may entitle the employer to require staff to work flexibly or in staggered shifts. If so, employers should normally consult with staff before exercising their rights to require flexible working and should listen sympathetically if staff have personal reasons why they cannot work flexibly in order to adapt the prevention measures to their circumstances.

If the employer needs employees to work outside the terms of their existing contracts then, it will be strictly mandatory to agree the flexible arrangements with the individual employee, or with a recognised union if collective bargaining is in place.

If the individual (or a union on their behalf) refuses to agree these changes then, depending on the circumstances, it may be possible to impose them either following consultation or through a process of substantial modification of the working conditions (which must be justified on objective grounds such as economic, organizational, productive or technical). If a recognised union is in place, then the employer should take legal advice before proceeding to implement changes without the union’s agreement as the employer will be obliged to comply with very strict legal requirements in order to ensure a legal valid cause to implement whatever measures are needed.

In any event, it is important that the employer can justify the need for flexible working and that it behaved reasonably and proportionately when implementing different working arrangements.

Alternatively, if the reason for flexibility is personal to the employee, in that the employee may be infected, then, from a health and safety perspective, the employer would have sufficient grounds for requiring the employee to work from home, provided their enforced removal from the workplace is proportionate and lasts no longer than is necessary. In such cases, the employee should be provided with whatever support or means are needed in order to guarantee the correct performance of his/her duties.

4. Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19. Health Ministry guidance advises employers to listen to the reasons for their concerns and to try to find an agreed resolution. Where work can be undertaken from home, it may be possible to agree home working for a reasonable period .

In other cases, such as site-based work or where staff are unable to work due to caring for dependants, it may be possible to agree that time away is taken as holiday or unpaid leave. However, employers cannot impose such requirement , as those are rights are expressly regulated by the Statute of the Workers, which must be freely and voluntarily exercised by the employees. To obtain the required consent, we recommend indicating that the arrangement is temporary and is only required on an exceptional basis given the current circumstances.

The employer may be able to provide support and advice via an existing Employee Assistance Programme. However, if an agreed resolution cannot be found and an employee refuses to attend work without a valid legal cause, disciplinary action could be considered. However, in that case, account should be taken of any risk of potential violation of fundamental rights or discrimination prior to proceeding.

Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees’ concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

Other employees may be willing but unable to work because they are caring for dependants, schools are shut, or their transport is disrupted. Employees have a right to request a reasonable amount of unpaid time off work to deal with domestic emergencies. Staff may also request flexible working; in which case the relevant statutory procedures would need to be followed.

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19 will be entitled to sick pay according to Spanish law. In other words, the usual sick pay provisions would apply.

Pay for staff members unable to come to work due to caring responsibilities, for example where schools are closed or where they are caring for sick dependants, should be determined in accordance with their employment contract and the employer’s usual policy, ensuring that all requests are treated in a reasonable and consistent manner. In such cases, the Health Ministry has highly recommended that employers guarantee home working and flexibility where possible.

Note that employees have a statutory right to choose to take a reasonable amount of unpaid time off work to deal with domestic emergencies affecting their dependants, including unexpected disruption to arrangements for the care of their children.

The position of staff absent from work due to medically-advised self-isolation or quarantine is equivalent to a sick leave period, which means that usual sick leave pay would be applicable.

Employers should decide how they intend to deal with such scenarios as part of their planning process. If they wish to require employees to use holiday in specific circumstances (for example, where employees have chosen to take holiday in a high-risk area and then have to self-isolate), this should be clearly communicated and agreed with employees in advance. Employers generally cannot require employees to take annual leave in order to guarantee the health and safety of the workplace, particularly where there are other measures that could be implemented instead, such as home working or other flexible ways of working.

6. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires (without asking for special protection data or private and confidential information) for staff members returning to work from high-risk areas and training managers to spot symptoms of CoVID-19.

Individual staff contracts may permit checks. A refusal to undergo a mandatory check when there is a real risk of infection in the workplace (for example, the employee appears ill or has been in a high risk area) may result in preventive measures such as being excluded from the workplace or even, in extreme circumstances, in disciplinary measures.

In the context of health and safety obligations, employers can request staff to report if they are infected or have been exposed to infection by using proportionate and reasonable means. However, under data protection law, such information about an individual’s health counts as a ‘special category’ of personal data which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees with a particular nationality or ethnicity are singled out for checks.

7. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shutdown period?

Employers cannot require employees to take annual leave during a shutdown period, as the annual leave is a right expressly regulated by the Statute of the Workers in Spain which must be voluntarily exercised by the employees.

8. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

• Create a senior team to co-ordinate monitoring Health Ministry and any other government guidance, implementing measures and providing information and support to staff.
• Devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details.
• Ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention.
• Train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks.
• Consider alternatives to travel such as using videoconferencing or webinars.
• Identify and track employees who are abroad and consider appropriate measures to support them.
• Identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations).
• Consider any measures necessary to sustain widespread home working.
• Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility in the workplace or staggered shifts.
• Consider how temporary shutdowns of premises might be managed.
• Review their insurance coverage.
• Consider their stance on requests to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, proportional, fair and applied consistently.

9. Where can guidance from the Spanish government and international bodies be found and monitored?

The Spanish government´s website (Health Ministry), provides the latest official information on CoVID-19 in Spain: http://mscbs.gob.es/

The World Health Organization’s information on the CoVID-19 may be found here: https://www.who.int/es/emergencies/diseases/novel-coronavirus-2019/advice-for-public

Other useful links for employers are as follows:

https://www.who.int/es/health-topics/coronavirus/coronavirus

https://www.who.int/es/emergencies/diseases/novel-coronavirus-2019/advice-for-public/q-a-coronaviruses

10. If an employer has a business operation in an affected area, what additional steps should be taken?

Companies operating in affected areas should comply with local regulations and guidance from international bodies such as the World Health Organisation. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill or have any symptoms.

Beyond compliance with local laws, companies (in coordination with the prevention service) should ensure measures are taken to properly assess the risks to staff and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

11. Is there any obligation on a private employer to report any cases or suspect cases of COVID-19 to the relevant local authorities?

There are no reporting obligations on employers at the moment (although this might evolve). However, if the employer has a reasonable suspicion or confirmation that an employee is infected, it is reasonable that the company could (exceptionally) require the employee to communicate this situation to the relevant local health authorities in order to guarantee the compliance of the prevention protocols. This request would be justified on the basis of the actual or potential hazard a spread of the infection might cause amongst the rest of the employees in the workplace and provided there are no other less privacy-invasive means.

Doctors (whether public or private) do have specific reporting obligations towards the public health authorities.