The Official State Gazette (BOE) of April 22nd published Royal Decree-Law 15/2020, of April 21st, on urgent complementary measures to support the economy and employment, which, among other things, incorporates a series of labor and social measures, such as unemployment benefit coverage for workers dismissed during the probationary period of a new job; expansion of the scope of Temporary Layoff Plans (ERTEs) due to force majeure to cover significant drops in activity in sectors considered essential; a two-month extension of the preferential status of teleworking and the right to adapt working hours and reduce working days; strengthened protection for fixed-term intermittent workers; and the application for cessation of activity for self-employed workers without mutual insurance, etc
We inform you that Royal Decree-Law 15/2020, of April 21, on urgent complementary measures to support the economy and employment, was published in the Official State Gazette (BOE) on April 22. This decree reinforces, complements and expands the decisions adopted since the second week of March to counteract the impact of COVID-19, and generally came into force on April 23.
The regulation incorporates more than 30 measures that strengthen business financing, offer fiscal support, facilitate economic adjustment, and protect employment and citizens.
Below, we inform you of the main labor and social measures included in this Royal Decree-Law 15/2020:
1. Unemployment benefit coverage is extended to workers dismissed during the probationary period of a new job.
Coverage is extended to workers whose contracts were terminated during the probationary period of a new job from March 9th onwards, or those who voluntarily terminated their contracts from March 1st onwards due to a firm job offer that subsequently fell through.
Specifically, the regulation establishes that the termination of the employment relationship during the probationary period at the company's request, occurring from March 9, 2020, onwards, will be considered a legal situation of unemployment, regardless of the reason for the termination of the previous employment relationship.
Likewise, workers who voluntarily terminated their last employment relationship on or after March 1, 2020, due to a firm commitment to a new employment contract with another company, will be considered legally unemployed and in a situation equivalent to being registered with Social Security if that company withdrew from the contract as a result of the COVID-19 crisis. This legal unemployment status will be certified by written notification from the company to the worker, confirming their withdrawal from the employment contract due to the COVID-19 crisis.
2. The scope of temporary layoff schemes (ERTEs) due to force majeure is expanded to cover significant drops in activity in sectors considered essential.
The regulations governing ERTEs due to force majeure are modified to cover significant reductions in activity in sectors considered essential, but which have been affected by mobility restrictions and have experienced a decrease in revenue.
Companies in essential sectors will be able to differentiate between workers performing essential tasks and those who are not, in order to be eligible for an ERTE.
Companies that carry out activities classified as essential can apply for temporary layoffs (ERTE) for the portion of their activity not affected by this essential nature. Thus, the new regulation only affects those essential activities that health authorities have permitted to be reduced (for example, dentists, ophthalmologists, physiotherapists, with respect to the part of their staff not providing services required by the health authorities, etc.)
Specifically, the regulation establishes that:
"Contract suspensions and reductions in working hours that are directly caused by losses of activity as a consequence of COVID-19, including the declaration of the state of alarm, which imply suspension or cancellation of activities, temporary closure of premises for public attendance, restrictions on public transport and, in general, on the mobility of people and/or goods, lack of supplies that seriously prevent the continuation of the ordinary development of the activity, or in urgent and extraordinary situations due to the contagion of the staff or the adoption of preventive isolation measures decreed by the health authority, which are duly accredited, will be considered as coming from a situation of force majeure, with the consequences that derive from article 47 of the consolidated text of the Law of the Statute of Workers, approved by Royal Legislative Decree 2/2015, of October 23.
In relation to activities that must be maintained in accordance with the declaration of the state of alarm, other legal regulations or the provisions issued by the delegated authorities pursuant to the provisions of Article 4 of Royal Decree 463/2020, of March 14, it shall be understood that the force majeure described in the previous paragraph applies to the suspensions of contracts and reductions of working hours applicable to the part of the activity not affected by the aforementioned conditions of maintaining the activity.".
3. Protection of fixed-term intermittent workers is strengthened.
The coverage established in Royal Decree-Law 8/2020 is extended to fixed-term intermittent workers who have not been able to return to their activity on the dates planned as a result of COVID-19 and who do not meet the requirement of legal unemployment status, or cannot access unemployment benefits because they lack the necessary contribution period.
With the new modifications, the coverage established in Royal Decree-Law 8/2020 is extended to fixed-term intermittent workers and those who perform fixed and periodic work that is repeated on certain dates, under the following terms:
a) In the event of suspension or reduction of working hours due to a temporary layoff (ERTE) of a fixed-term intermittent contract (Articles 22 and 23 of Royal Decree-Law 8/2020), or in cases where workers are awaiting the date on which they would be called back to work and effectively reintegrated had it not been for the COVID-19 crisis, they may benefit from the following general measures:
– Recognition of the right to contributory unemployment benefits, regulated in Title III of the consolidated text of the General Social Security Law, for affected workers, even if they lack the minimum contribution period required.
– The time during which contributory unemployment benefits are received, directly caused by the aforementioned extraordinary circumstances, will not be counted towards the maximum benefit periods established.
(b) Workers who, while not falling under the category described in the previous section, experience an interruption in their employment due to the impact of COVID-19 during periods that, had this extraordinary circumstance not occurred, would have been periods of employment, and who consequently become eligible for unemployment benefits, may resume receiving these benefits, up to a maximum of 90 days, once they are legally unemployed again.
To determine the period that, had this circumstance not occurred, would have been a period of employment, the actual time worked by the worker during the previous calendar year under the same employment contract will be considered. If it is the first year, the periods of employment of other comparable workers in the company will be considered. This measure will apply to the same benefit already used and will be automatically recognized by the managing entity when the interested party requests its resumption.
c) Workers who can demonstrate that, as a result of the impact of COVID-19, they were unable to return to work on the scheduled date and were receiving benefits at that time, will not have their right to the benefit or subsidy they were receiving suspended.
If, on the date they should have returned to work, they were not receiving unemployment benefits because they had exhausted them, but they can demonstrate the necessary contribution period to obtain a new contributory benefit, the employer's certification of the impossibility of returning to work will constitute a legal situation of unemployment for the purpose of recognizing the right to said benefit.
The reinstatement of the right to the benefit provided for in letter b) shall apply to the workers referred to in this paragraph).
d) Workers whose employment has been interrupted and those who have been unable to return to work as a result of COVID-19, and who lack the necessary contribution period to qualify for unemployment benefits, will be entitled to a new contributory benefit, which may be received until the date of their return to work, with a maximum limit of 90 days. The monthly amount of the new benefit will be equal to the last monthly payment of the contributory benefit received, or, where applicable, to the minimum amount of the contributory benefit. The same right will apply to those who, during the COVID-19 crisis, exhaust their unemployment benefits before the date of their return to work and lack sufficient contributions to qualify for a new benefit. In this case, the employer's certification of the impossibility of returning to work will constitute a new legal situation of unemployment. In this scenario, the provisions of paragraph b) will not apply when they demonstrate a new legal situation of unemployment.
4. Two-month extension of work schedule adjustments and reductions for work-life balance.
The right to adjust working hours and reduce working hours for people with dependents is extended for two more months due to the health crisis.
In contrast to the measure implemented to close educational centers and other services for the elderly, the rights to adjust working hours and work arrangements, and to reduce working hours (up to 10%) to care for dependents during this coronavirus crisis, are extended for two more months.
5. Two-month extension of the preferential status of remote work (teleworking)
The preferential status of remote work (teleworking) is extended for two months.
Following the provisions of Royal Decree-Law 8/2020, which grants "preferential status" to remote work whenever possible, this measure must take priority over the temporary cessation or reduction of activity.
6. Use of funds from the Cooperative Promotion and Education Fund to mitigate the effects of COVID-19.
The Cooperative Promotion and Education Fund is being made more flexible on an extraordinary basis so that it can be used for any activity that contributes to curbing or mitigating the effects of COVID-19, through its own actions, donations to other public or private entities, or by providing liquidity to the cooperative to guarantee the continuity of its operation.
1. Thus, during the period of validity of the state of alarm declared by Royal Decree 463/2020, of March 14, which declares the state of alarm for the management of the health crisis situation caused by COVID-19 and its possible extensions and until December 31, 2020, the Cooperative Education and Promotion Fund of cooperatives regulated in article 56 of Law 27/1999 on Cooperatives, may be allocated, in whole or in part, to the following purposes:
a) As a financial resource, to provide liquidity to the cooperative if needed for its operation.
For these purposes, the Cooperative Education and Promotion Fund intended for this purpose must be replenished by the cooperative with at least 30% of the freely available profits generated each year, until it reaches the amount that said Fund had at the time of the decision to apply it exceptionally and within a maximum period of 10 years.
b) Any activity that helps to curb the COVID-19 health crisis or to alleviate its effects, either through its own actions or through donations to other entities, public or private.
2. During the period of the state of alarm declared by Royal Decree 463/2020, of March 14, or any of its extensions, the Governing Council will assume the power to approve the application of the Education or Promotion Fund under the terms provided in section 1, when due to a lack of adequate or sufficient means the General Assembly of the cooperative societies cannot be convened for its celebration through virtual means.
The exceptional assumption of this power by the Governing Council will extend until December 31, 2020, when the protection of the health of the cooperative's members continues to require the virtual holding of the General Assembly of the cooperative society and this is not possible due to a lack of adequate or sufficient means.
3. For these exclusive purposes, the provisions of Articles 13.3 and 19.4 of Law 20/1990, of December 19, on the Tax Regime of Cooperatives, shall not apply. Therefore, the Cooperative Training and Promotion Fund that has been applied in accordance with point (a) of paragraph 1 shall not be considered income for the cooperative.
7. Improvements for agricultural workers:
The reduction of contributions for certain agricultural workers during periods of inactivity in 2020 is approved, or the procedure for deferring Social Security debt is simplified.
• Social Security contributions during periods of inactivity in the Special System for Agricultural Employees established in the General Social Security Scheme: With effect from January 1, 2020, workers who have performed a maximum of 55 actual days of contributions in 2019 will have a reduction of 19.11 percent applied to the resulting contributions during periods of inactivity in 2020.
• Verification of the requirements for incorporation into the Special System for Self-Employed Agricultural Workers: the verification of the validity of the incorporations into the Special System for Self-Employed Agricultural Workers, established in the Special Social Security Scheme for Self-Employed Workers or Freelancers, which is pending to be carried out by the General Treasury of Social Security on the date of entry into force of this royal decree-law (i.e., April 23), will be carried out taking into account the concurrence of the requirements established in article 324.1 of the Consolidated Text of the General Social Security Law, approved by Royal Legislative Decree 8/2015, of October 30, in accordance with the wording given to said article by the sixth final provision.
• Inclusion in the Special System for Self-Employed Agricultural Workers:
1. This special system shall include workers who own agricultural holdings and personally and directly carry out agricultural work on them, even if they employ other workers, provided that there are no more than two workers contributing on a monthly basis or, if they are workers contributing on a daily basis, as referred to in Article 255, that the total number of actual working days does not exceed 546 in a year, calculated from January 1 to December 31 of each year. The number of actual working days shall be reduced proportionally based on the number of days the self-employed agricultural worker is registered in this Special System during the calendar year in question.
The limitations on the employment of other workers referred to in the preceding paragraph shall apply to each agricultural holding.
2. For the purposes of this special system, an agricultural holding is defined as the set of assets and rights organized by its owner in the exercise of agricultural activity, constituting a self-contained technical and economic unit. The owner or owners of the holding may hold this title by virtue of being the proprietor, lessee, sharecropper, assignee, or under any other similar arrangement, of the land or material elements of the respective agricultural holding.
In this respect, agricultural activity is understood to be the set of tasks required to obtain agricultural, livestock, and forestry products.
For the purposes of this special system, agricultural activity shall be considered to be the direct sale by the farmer of their own production without processing or the first processing of the same whose final product is included in Annex I of Article 38 of the Treaty on the Functioning of the European Union, within the elements that make up the farm, in municipal markets or in places that are not permanent commercial establishments, and agricultural activity shall also be considered to be any activity that involves the management or direction and management of the farm.
8. Option for a Mutual Insurance Company Collaborating with the Social Security System for Self-Employed Workers Who Initially Opted for a Managing Entity.
Self-employed workers had until June 2019 to choose a Mutual Insurance Company collaborating with the Social Security System for the management of certain Social Security benefits. Approximately 50,000 self-employed workers did not do so and are now facing a massive influx of applications for cessation of activity. Therefore, Royal Decree-Law 15/2020 allows them to choose a Mutual Insurance Company at the time of applying for cessation of activity, thus ensuring that the new entity can recognize their entitlement and facilitate the process.
They will also be able to apply for Temporary Disability benefits from that point forward through the Mutual Insurance Company they choose.
Specifically, the regulation establishes that:
Workers included within the scope of the Special Social Security Scheme for Self-Employed Workers who have not exercised the option provided for in Article 83.1.b) of the consolidated text of the General Social Security Law, approved by Royal Legislative Decree 8/2015, of October 30, nor the option for a mutual insurance company, pursuant to the provisions of paragraph 7 of Article 17 of Royal Decree-Law 8/2020, of March 17, on urgent extraordinary measures to address the economic and social impact of COVID-19, must comply with the provisions of the aforementioned Article 83.1.b), by exercising the option and formalizing the corresponding membership document within three months from the end of the state of emergency. This option will take effect from the first day of the second month following the end of this three-month period.
Once the deadline for exercising the option provided in the preceding paragraph has passed without the worker having formalized the corresponding membership document, it will be understood that they have opted for the mutual insurance company with the largest number of self-employed workers affiliated in the province where they reside. Membership will automatically take effect from the first day of the second month following the end of the three-month period referred to in the preceding paragraph. To effect this membership, the National Social Security Institute will provide the mutual insurance company with the strictly necessary information about the self-employed worker.
The Mutual Insurance Company for Social Security will notify the worker of the membership with express indication of the effective date and the coverage for the protected contingencies.
The option for a mutual insurance company collaborating with the Social Security system for workers in the Special Social Security Scheme for Self-Employed Workers or the Self-Employed, made in order to qualify for the extraordinary benefit for cessation of activity regulated in Article 17 of Royal Decree-Law 8/2020, of March 17, on urgent extraordinary measures to address the economic and social impact of COVID-19, will result in the mutual insurance company chosen by the self-employed worker assuming the protection and responsibility for the payment of the extraordinary benefit for cessation of activity as well as the rest of the benefits derived from the contingencies for which coverage has been formalized, including the subsidy for temporary incapacity whose medical leave is issued after the date of formalization of the protection with said mutual insurance company and derives from the relapse of a previous temporary incapacity process covered with the managing entity.
The responsibility for the payment of the economic benefits derived from the processes that are in progress at the time of the date of formalization of the protection referred to in the first paragraph, will continue to correspond to the managing entity.
9. Deferral of payments to Social Security whose regulatory payment period falls between April and June 2020.
Applications must be made before the end of the first ten calendar days of each of the regulatory payment periods and the deferral will be granted by a single resolution, will be amortized by monthly payments and will determine an amortization period of 4 months for each monthly payment requested from the month following the one in which it has been issued, without exceeding a total of 12 monthly payments.
The deferral will be incompatible with the moratorium on fees and requests for deferral for periods for which the aforementioned moratorium has also been requested will be considered as not submitted, if the applicant has been granted the latter.
10. Redemption of Pension Funds
Within the framework of citizen protection, the terms for the redemption of pension funds are established, defining, among other things, the accreditation of the circumstances that entitle the holder to access the plans, the period to which these circumstances are linked, and the maximum amount that can be withdrawn.
Specifically, the regulation establishes:
For the purposes of the provisions of the twentieth additional provision of Royal Decree-Law 11/2020, of March 31, which adopts additional urgent measures in the social and economic sphere to address COVID-19, the following rules will apply to the availability of vested rights in pension plans:
1. Participants in individual and associated pension plans, and participants in defined contribution or mixed employment pension plans for those contingencies defined under a defined contribution scheme, may request to exercise their vested rights in the cases of the aforementioned twentieth additional provision of Royal Decree-Law 11/2020, of March 31.
Participants in employment pension plans of the defined benefit or mixed modality may also have access, for those contingencies defined in the defined benefit regime or linked to it, to the consolidated rights in case of being affected by a ERTE, the suspension of opening to the public of establishments or the cessation of activity, derived from the health crisis situation caused by COVID-19, when the commitment for pensions allows it and the specifications of the plan approved by its control commission provide for it under the conditions that they establish.
2. The existence of the circumstances referred to in section 1 of the twentieth additional provision of Royal Decree-Law 11/2020 shall be proven by the participant of the pension plan who requests the withdrawal by submitting the following documents to the pension fund management entity:
a) If the participant is affected by a temporary employment regulation file (ERTE) derived from the health crisis situation caused by COVID-19, the certificate from the company will be presented in which it is proven that the participant has been affected by the ERTE, indicating the effects of the same on the employment relationship for the participant.
b) If the participating entrepreneur owns an establishment whose opening to the public has been suspended as a result of the provisions of Article 10 of Royal Decree 463/2020, of March 14, the participating entrepreneur shall submit a declaration stating, under his responsibility, that he meets the requirements established in section 1, letter b) of the twentieth additional provision of Royal Decree-Law 11/2020, of March 31, in order to be able to exercise his vested rights.
c) In the case of being a self-employed worker who had previously been integrated into a Social Security scheme as such, or into an alternative mutualism scheme to this and has ceased his activity during the state of alarm decreed by the Government due to COVID-19, the certificate issued by the State Tax Administration Agency or the competent body of the Autonomous Community, as appropriate, will be presented on the basis of the declaration of cessation of activity declared by the interested party.
d) If the applicant is unable to provide any of the required documents, they may submit a sworn statement explaining the reasons, related to the consequences of the COVID-19 crisis, that prevent them from doing so. After the state of emergency and any extensions thereof have ended, the applicant will have one month to submit the missing documents.
3. The amount of vested rights available will be that justified by the participant to the pension fund management entity, with the maximum limit being the lower of the following two amounts for all pension plans held by the participant:
1. Depending on which of the scenarios indicated in section 1 of the twentieth additional provision of Royal Decree-Law 11/2020, of March 31, applies:
a) if the participant is affected by a temporary layoff (ERTE) resulting from the health crisis caused by COVID-19: the net salaries not received while the ERTE remains in effect, with a maximum calculation period equal to the duration of the state of alarm plus one additional month, justified with the last payslip prior to this situation;
b) in the case of a business owner whose establishment has been suspended from opening to the public as a result of the provisions of Article 10 of Royal Decree 463/2020, of March 14: the estimated net income that has not been received due to the suspension of opening to the public, with a maximum calculation period equal to the validity of the state of alarm plus one additional month, justified by the presentation of the annual declaration of Personal Income Tax corresponding to the previous year and, where appropriate, the installment payment of Personal Income Tax and the self-assessments of Value Added Tax corresponding to the last quarter;
c) In the case of self-employed workers who were previously registered with the Social Security system as such, or with an alternative mutual insurance scheme, and who have ceased their activity as a result of the state of emergency declared by the Government: the net income that has not been received as a result of the cessation of activity during a maximum calculation period equal to the duration of the state of emergency plus one additional month, estimated using the annual Personal Income Tax return for the previous year and, where applicable, the quarterly Personal Income Tax payments and the Value Added Tax returns for the last quarter.
In the case of sections b) and c), the applicant must also provide a sworn statement quantifying the monthly amount of income reduction.
2. The result of prorating the annual Public Indicator of Income for Multiple Effects (IPREM) for 12 payments in force for the 2020 fiscal year, multiplied by three in the proportion corresponding to the duration of the ERTE (Temporary Employment Regulation File), the period of suspension of the opening to the public of the establishment, or the period of cessation of activity, as applicable to each of the cases referred to in sections a), b), and c) of section 1 of the twentieth additional provision of Royal Decree-Law 11/2020, of March 31. In any case, in all three cases, the maximum period of time to be counted is the duration of the state of alarm plus one additional month.
4. The participant will be responsible for the veracity of the documentation proving the existence of the factual situation required to request the benefit, as well as the accuracy in the quantification of the amount to be received.
5. The refund must be made within a maximum period of seven business days from the date the participant submits the complete supporting documentation. In the case of employment-based pension plans, this period will be extended to thirty business days from the date the participant submits the complete supporting documentation.
6. The provisions of this section shall also apply to the insured parties of insured pension plans, company social welfare plans, and mutual social welfare societies referred to in Article 51 of Law 35/2006, of November 28, on Personal Income Tax. In these cases, the references made in the preceding sections to managing entities, participants, and pension plan specifications shall be understood to refer to insurance companies, the insured parties or mutual members, and the insurance policies or benefit regulations, respectively. In the case of mutual social welfare societies that act as an alternative to registration in the Special Social Security Scheme for Self-Employed Workers, the economic rights of the products or insurance used to fulfill this alternative function may not be exercised.
7. The preceding sections define the assumptions and conditions under which the exceptional power to liquidate vested rights, provided for in the twentieth additional provision of Royal Decree-Law 11/2020 of 31 March, may be exercised. In matters not covered by these sections, the latter twentieth additional provision remains in force.
8. The amounts and documentation indicated in the previous sections may be modified by Royal Decree, in accordance with the provisions of section 3 of the twentieth additional provision of Royal Decree-Law 11/2020, of March 31.
11. Adjustments to the qualification of worker-owned company.
Some of the requirements that allow public limited companies or limited liability companies to qualify as worker-owned companies are being temporarily and exceptionally adjusted.
Specifically, the 36-month period stipulated in section b of paragraph 2 of Article 1 of Law 44/2015, of October 14, on Worker-Owned and Participatory Companies, for reaching the limit established in said section, is extended for an additional 12 months.
This extraordinary extension will apply exclusively to worker-owned companies incorporated during 2017.
It should be remembered that section 2 of article 1 of Law 44/2015 on Worker-Owned and Participated Companies establishes that public limited companies or limited liability companies that meet the following requirements may obtain the qualification of "Worker-Owned Company":
a) That at least the majority of the share capital is owned by workers who provide paid services in them personally and directly, by virtue of an employment relationship for an indefinite period.
b) That none of the partners holds shares or equity interests representing more than one third of the share capital, unless:
• The worker-owned company is initially formed by two worker-partners with an indefinite-term contract, in which both the share capital and voting rights will be distributed fifty percent, with the obligation that within a maximum period of 36 months they adjust to the limit established in this section.
• The partners are public entities, entities with majority public participation, non-profit entities or social economy entities, in which case the participation may exceed this limit, without reaching fifty percent of the share capital.
In the event of a subsequent transgression of the limits indicated in sections a) and b) of this article, the company will be obliged to adapt the situation of its partners to the law, within a period of eighteen months from the first breach.
12. Suspension of time limits within the scope of action of the Labor and Social Security Inspectorate.
The period of validity of the state of emergency, as well as any possible extensions, will not be counted for the purposes of the time limits for the duration of actions by the Labor and Social Security Inspectorate or for compliance with any requirements. Exceptions are made for actions arising from situations closely linked to the events justifying the state of emergency, or those that, due to their seriousness or urgency, are indispensable. The statute of limitations for actions to demand liability with regard to compliance with social order and Social Security regulations is also suspended.
13. Sanctions and Reimbursement of Undue Benefits.
The provisions relating to sanctions and reimbursement of undue benefits are amended with respect to applications submitted by companies containing false or inaccurate information.
Companies will be subject to penalties for requesting employment-related measures that are unnecessary or insufficiently connected to the cause for which they are requested, provided that this is evident from the false or inaccurate information provided and that such requests result in the generation or receipt of undue benefits or the application of undue deductions in Social Security contributions.
It is further added that the worker will retain the right to the salary corresponding to the period of employment regulation initially authorized, less the amounts that he/she may have received as unemployment benefits.
Amendments are introduced to the Law on Infringements and Sanctions in the Social Order, among which is that in the case of infringement of article 23.1.c) (consisting of making declarations, or facilitating, communicating or recording false or inaccurate data that lead to workers obtaining or enjoying benefits improperly, as well as collusion with their workers or with other beneficiaries to obtain undue benefits or benefits higher than those that are due in each case, or to avoid compliance with the obligations that correspond to any of them in matters of benefits) the company will be directly responsible for the return of the amounts improperly received by the worker, provided that there is no intent or fault on the part of the worker.
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