I. SUBJECTIVE SCOPE OF APPLICATION
Royal Decree-Law 10/2020 of 29 March (“RDL 10/2020”) establishes a period of recoverable paid leave that is obligatory for employees who work for public or private companies or institutions which activities have not been paralysed by Royal Decree 463/2020 of 14 March declaring a state of emergency to address the COVID-19 health crisis (“RD 463/2020”).
The following employees are exempted from RDL 10/2020’s scope of application (article 1 and annex):
- Employees who work in sectors classed as essential, or in non-essential sectors but within divisions or production lines which activity corresponds to a sector classed as essential in the annex to RDL 10/2020. It lists 25 cases in which the recoverable paid leave will not have to be taken. For example, employees who:
(1) Perform activities that must continue to be carried out under articles 10.1, 10.4, 14.4, 16, 17 and 18 of RD 463/2020 and the regulations approved by the Government and Ministries to which powers have been delegated during the state of emergency.
(9) Care for the elderly, minors, dependent persons or persons with disabilities.
(16) Provide services in law firms and legal consultancies, administrative and labour agencies, and external and in-house occupational hazard prevention services, for urgent matters.
The full list of employees who are not obliged to take the recoverable paid leave can be found in section VI.
- Employees of companies that, during the obligatory leave period under RDL 10/2020 (i) submit or are in the process of submitting a plan to the labour authorities seeking approval to temporarily suspend their employees’ contracts (known by its Spanish acronym as an ERTE) or reduce their working hours; or (ii) receive approval for such a plan.
- Employees who are on temporary disability leave or whose contract is suspended on other statutory grounds.
- Employees who can continue working normally by teleworking or any other remote means.
II. DURATION AND CONDITIONS OF THE RECOVERABLE PAID LEAVE
The leave is to be taken from Monday 30 March to Thursday 9 April 2020, both inclusive (article 2).
During the recoverable paid leave, employees retain the right to the remuneration that would have been due to them if they had been working normally, including basic salary and salary supplements. Consequently, all employers’ and employees’ obligations regarding the settlement and contribution of payments/fees and other joint-collection items remain in force.
III. PROCESS FOR RECOUPING WORKING HOURS
The working hours corresponding to the period of paid leave are to be recouped starting from the day following the end of the state of emergency until 31 December 2020.
Once the leave has ended (i.e. on or after 9 April 2020), employers must begin a consultation period to negotiate how their employees will make up their working hours (article 3), which will be subject to the following rules:
- Negotiations must be carried out between the employer and the employees’ representatives. If there are no employee representatives, they are to be represented by a negotiating committee assembled in accordance with article 23 of Royal Decree Law 8/2020 of 17 March on urgent and extraordinary measures to address the economic and social impact of COVID-19.
- Negotiations must be completed within a maximum period of seven days (and to this end the negotiating committee must be assembled within a non-extendable period of five days).
- During the consultation period the parties must negotiate in good faith to reach an agreement. The parties may agree at any time to replace the consultation period with a mediation or arbitration procedure provided for in national or regional interprofessional agreements.
- The agreement will require the approval of a majority of the employees’ representatives or the members of their negotiating committee (as applicable), which in turn must represent a majority of the employees who have had to take this extraordinary leave.
- The agreement reached will regulate:
- How many of the working hours corresponding to the leave period are to be recouped by the employer.
- The minimum notice that the employees must be given of the dates and times when they must work the hours to be recouped by the employer.
- The approximate dates between which the working hours will be recouped.
- If no agreement is reached during the consultation period, within the following seven days the employer must notify the employees and their representatives in the negotiations of its decision on the recouping of the working hours corresponding to the leave period.
- Whether or not an agreement is reached, the recouping of these hours cannot result in:
- A breach of minimum daily and weekly rest periods provided for by law and the collective bargaining agreement.
- Employees being given less than five days’ notice of the dates and times when they must work the hours to be recouped by the employer (as per article 34.2 of the Statute of Workers).
- Employees exceeding the maximum annual working time established in the applicable collective bargaining agreement.
- A breach of the employees’ rights to work-life balance established by law and collective bargaining agreements.
IV. MINIMUM INDISPENSABLE ACTIVITY IN NON-ESSENTIAL SERVICES
Companies which employees must take the recoverable paid leave may establish the minimum number of employees or shifts that are strictly necessary to maintain their indispensable activity. This activity and minimum number of staff/shifts should be determined by reference to the company’s normal activity during an ordinary weekend or on public holidays (article 4).
V. GRADUAL SHUTDOWN ON 30 MARCH 2020
In those cases in which it is impossible to immediately interrupt a company’s activity, its employees could work on 30 March 2020 with the sole purpose of carrying out those tasks essential to ensuring that the company’s activity can resume after the recoverable paid leave period without irremediable or disproportionate damage being caused (first transitory provision).
VI. EMPLOYEES TO WHOM OBLIGATORY PAID LEAVE DOES NOT APPLY
Obligatory paid leave shall not apply to the following employees:
- Those who realise activities that must be carried out under articles 10.1, 10.4, 14.4, 16, 17 and 18 of RD 463/2020 and the regulations approved by the Government and Ministries to which powers have been delegated during the state of emergency.
- Those who work in activities involved in the market supply chain and in the functioning of services of production facilities for goods and services of basic necessity, including food, drinks, animal food, hygiene products, medicines, healthcare products or any product necessary for health protection, allowing for their distribution from point of origin to final destination.
- Those who perform hospitality and restaurant activities that provide home-delivery services.
- Those who provide services in the production and distribution chain of goods, services, healthcare technologies, medical materials, protective equipment, healthcare and hospital equipment and any other materials necessary for the provision of healthcare services.
- Those who are essential to maintaining the production activities of the manufacturing industry that offer the supplies, equipment and materials necessary for the proper carrying out of the essential activities listed in this annex.
- Those who provide transport services, both for persons and goods, that will continue to be carried out from the declaration of the state of emergency, as well as those needed to ensure the maintenance of the means used for this purpose, under the regulations approved by Government and Ministries to which powers have been delegated during the state of emergency.
- Those who provide services in penal, civil-protection, maritime-rescue, fire-prevention and fire-fighting, mine-safety, and traffic and road-safety institutions. Likewise, those who work in private-security companies that provide security-transport, emergency-response, patrol or intermittent surveillance services, and those who may need to be used to perform security services to guarantee essential services and supply the population.
- Those who are essential to maintenance of the supplies and equipment of the armed forces.
- Those of healthcare centres, services and establishments, as well as persons who (i) care for the elderly, minors, dependent persons or persons with disabilities, and persons who work in companies, R&D&I centres and biotechnology centres linked with COVID-19; (ii) work in the animal facilities associated with them; (iii) work in maintenance of the minimum services of the facilities associated with them and the companies supplying products necessary for such research; and (iv) work in funeral services and other related activities.
- Those of animal-healthcare centres, services and establishments.
- Those who provide services at newspaper sales points and in public and private media or news agencies, as well as in their printing or distribution.
- Those of financial services firms, including banking, insurance and investment firms, to provide services that are indispensable and activities relating to payment infrastructures and the financial markets.
- Those of telecommunications, audio-visual, and essential computing services companies, as well as those networks and facilities that support them and the sectors or subsectors necessary for their proper functioning, especially those that are essential for the proper provision of public services, as well as the functioning of the remote working of public employees.
- Those who provide services related to the protection and care of victims of gender-based violence.
- Those who work as lawyers, solicitors, labour specialists, translators, interpreters and psychologists and who attend proceedings that have not been suspended by RD 463/2020 and, in this way, comply with the essential services agreed as such by the Ministry of Justice, the General Council of the Judiciary, the Office of the Public Prosecutor and the Autonomous Regions with jurisdiction in this area, as set out in the Resolution of the Secretary of State for Justice of 14 March 2020 and in any adaptations that may be agreed.
- Those who provide services in law firms and legal consultancies, administrative and labour agencies, and external and in-house occupational hazard prevention services, in urgent matters.
- Those who provide services in notary offices and registries in order to perform the essential services established by the General Directorate of Legal Certainty and Public Trust.
- Those who provide cleaning, maintenance, urgent fault repair and surveillance services, as well as those who provide services for the collection, management and treatment of hazardous waste, as well as municipal solid waste, both hazardous and non-hazardous, the collection and treatment of wastewater, decontamination activities and other waste-management services and the transport and removal of by-products or who provide services for any entities belonging to the public sector, in accordance with the provisions of article 3 of Law 9/2017 of 8 November on public sector contracts.
- Those working in Refugee Shelter Centres, Centres for Temporary Accommodation of Immigrants and privately run public entities subsidised by the State Secretariat for Migration and which operate within the framework of international protection and humanitarian assistance.
- Those who work in activities for the supply, purification, piping, treatment and sanitation of water.
- Those who are indispensable for the provision of meteorological-prediction and observation services and associated maintenance, surveillance and supervision processes.
- Those of the operator appointed by the State to provide the universal postal service, in order to provide collection, intake, transport, sorting, distribution and delivery services for the exclusive purpose of guaranteeing the universal postal service.
- Those who provide services in those sectors or subsectors involved in the import and supply of healthcare materials, such as logistics, transport, storage, customs-transit (freight forwarders) companies and, in general, all those involved in shipping lanes related to healthcare.
- Those who work in the distribution and delivery of products purchased via internet, telephone or mail order.
- Any others who provide services that have been considered essential.