Royal Decree-Law 10/2020, of March 29, was published in the Official State Gazette (BOE) on March 29. This decree regulates a recoverable paid leave for employees who do not provide essential services, with the aim of reducing population mobility in the context of the fight against COVID-19. It entered into force on March 29 and also establishes the list of essential activities that may continue operating during this second phase of confinement and suspension of activities. However, the regulation includes a moratorium for cases in which it is impossible to immediately interrupt activity. In these cases, employees may provide services on Monday, March 30, 2020.
The Royal Decree-Law 10/2020, of March 29, was published in the Official State Gazette (BOE) on March 29, regulating a recoverable paid leave for employees who do not provide essential services, in order to reduce the mobility of the population in the context of the fight against COVID-19. It came into force on March 29 and also establishes the list of essential activities that may continue working during this second phase of confinement and suspension of activities.
What does paid leave that can be made up later entail?
It is important to note that the paid and recoverable leave is an "exceptional measure" approved by the Government on Sunday, March 29, to address the health emergency caused by the COVID-19 coronavirus pandemic.
This leave, which is mandatory between March 30 and April 9, 2020, inclusive, means that workers must not go to work and will retain the right to the remuneration they would have received had they been working normally, including base salary and salary supplements.
In return, workers will be required to make up the hours not worked during the paid leave.
Moratorium: However, in cases where it is impossible to immediately interrupt operations, workers may provide services on Monday, March 30, 2020, for the sole purpose of carrying out the tasks essential to implementing the recoverable paid leave without irreparably or disproportionately harming the resumption of business activity. Thus, carriers performing a non-essential service will begin their recoverable paid leave once the current service has been completed, including, where applicable, the corresponding return trip as part of the service.
Other things to consider:
The recovery of working hours may be implemented from the day after the end of the state of emergency until December 31, 2020.This recovery must be negotiated during a consultation period opened for this purpose between the company and the legal representatives of the workers, which will have a maximum duration of 7 days.
The regulation provides for the mechanisms for appointing the workers' representatives and for the consultation period. During the consultation period, the parties must negotiate in good faith, with a view to reaching an agreement.
If the company does not have legal representation of the workers, the workers' representative committee for the consultation period will be composed of the most representative unions in the sector to which the company belongs and which are authorized to participate in the negotiating committee for the applicable collective bargaining agreement. The committee will consist of one person from each of the unions that meet these requirements, and decisions will be made by the corresponding representative majorities.
If this representation cannot be formed, the committee will be composed of three workers from the company itself, chosen in accordance with Article 41.4 of the Workers' Statute.
In any case, the representative committee must be formed within a non-extendable period of 5 days.
The agreement reached may regulate the recovery of all or part of the working hours, the minimum notice period that the worker must be given regarding the day and time of the resulting work, as well as the reference period for recovering the unworked time.
If no agreement is reached during this consultation period, the company will notify the employees and the employee representatives, within 7 days of the end of that period, of the decision regarding the recovery of working hours not worked during the application of this leave.
The recovery of hours may not result in a breach of the minimum daily and weekly rest periods, the establishment of a notice period shorter than that stipulated in Article 34.2 of the Workers' Statute, or exceeding the maximum annual working hours. The rights to reconcile personal, work, and family life must be respected.
Companies required to implement the recoverable paid leave may, if necessary, establish the minimum number of staff or work shifts strictly necessary to maintain essential activity. This activity and this minimum staff or shifts will be based on the levels maintained on a typical weekend or public holiday.
Who is eligible for paid leave that can be made up later?
All employees working for others in companies or entities in the public or private sector whose activity has not been suspended as a result of the declaration of a state of emergency, with the following exceptions:
1. Employees working in sectors classified as essential.
2. Employees working in divisions or production lines whose activity corresponds to sectors classified as essential.
3. Employees hired by (i) companies that have requested or are implementing a temporary layoff plan (ERTE) and (ii) companies authorized to implement a temporary layoff plan (ERTE) during the period of paid leave.
4. Employees on sick leave or whose contract is suspended for other legally established reasons.
5. Employees who can continue performing their work normally through teleworking or any other non-face-to-face work arrangement.
What activities are essential? Which workers are not eligible for paid leave that can be made up later?
The following is an annex to the regulation, listing the employees to whom the recoverable paid leave does not apply.
The paid leave regulated in this Royal Decree-Law will not apply to the following employees:
1. Those carrying out activities that must continue after the declaration of the state of emergency:
a) Retail activities involving food, beverages, essential goods and products, pharmacies, healthcare establishments, veterinary clinics or centers, opticians and orthopedic product stores, hygiene products, newspapers and stationery stores, automotive fuel, tobacconists, technological and telecommunications equipment, pet food, online, telephone or mail order commerce, dry cleaners, laundries, and the professional practice of hairdressing at home.
b) Home delivery services in the restaurant sector.
c) The transport of goods to guarantee the supply and delivery of products purchased through online, telephone or mail order commerce.
d) Customs transit at entry points or border inspection points located in ports or airports
e) Those for the supply of electricity, petroleum products, as well as natural gas
f) Critical operators of critical services and infrastructure and those of companies and suppliers that are essential to ensure the supply of the population and the essential services themselves.
2. Those who work in activities that participate in the market supply chain and in the operation of services of production centers for essential goods and services, including food, beverages, animal feed, hygiene products, medicines, health products or any product necessary for the protection of health, allowing their distribution from origin to final destination.
3. Those that provide services in the hospitality and catering activities that provide home delivery services.
4. Those that provide services in the production and distribution chain of goods, services, health technology, medical material, protective equipment, health and hospital equipment and any other materials necessary for the provision of health services.
5. Those essential for the maintenance of the productive activities of the manufacturing industry that provide the supplies, equipment and materials necessary for the proper development of the essential activities included in this annex.
6. Those that carry out transport services, both of people and goods, that continue to be developed since the declaration of the state of alarm, as well as those that must ensure the maintenance of the means used for this purpose.
7. Those providing services in Penitentiary Institutions, Civil Protection, Maritime Rescue, Firefighting and Prevention, Mine Safety, and Traffic and Road Safety. Also, those working in private security companies providing security transport services, alarm response, patrol or intermittent surveillance, and those services necessary for the performance of security services to guarantee essential services and supplies to the population.
8. The essential ones that support the maintenance of the material and equipment of the armed forces.
9. Those of the health centers, services and establishments, as well as the people who (i) care for the elderly, minors, dependent persons or persons with disabilities, and the people who work in companies, R&D centers and biotechnological centers linked to COVID-19, (ii) the animal facilities associated with them, (iii) the maintenance of the minimum services of the facilities associated with them and the companies supplying products necessary for said research, and (iv) the people who work in funeral services and other related activities.
10. Those of the centers, services and establishments of health care to animals.
11. Those that provide services at press outlets and in media or news agencies of public and private ownership, as well as in their printing or distribution.
12. Those of financial services companies, including banking, insurance and investment companies, for the provision of essential services, and the activities of payment infrastructures and financial markets.
13. Those of telecommunications and audiovisual companies and essential computer services, 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 non-face-to-face work of public employees.
14. Those that provide services related to the protection and care of victims of gender violence.
15. Those who work as lawyers, solicitors, social graduates, translators, interpreters and psychologists and who attend procedural actions not suspended by Royal Decree 463/2020, of March 14
16. Those who provide services in law firms and consultancies, administrative and social graduate management offices, and external and internal occupational risk prevention services, in urgent matters.
17. Those who provide services in notaries and registries for the fulfillment of essential services established by the General Directorate of Legal Security and Public Faith.
18. Those that provide cleaning, maintenance, urgent breakdown repair and surveillance services, as well as those that provide services related to the collection, management and treatment of hazardous waste, as well as municipal solid waste, hazardous and non-hazardous, collection and treatment of wastewater, decontamination activities and other waste management services and transport and removal of by-products or in any of the entities belonging to the Public Sector.
19. Those who work in Refugee Reception Centres and Temporary Immigrant Stay Centres and in public entities of private management.
20. Those who work in water supply, purification, conveyance, treatment and sanitation activities.
21. Those that are indispensable for the provision of meteorological forecasting and observation services and the associated processes of maintenance, monitoring and control of operational processes.
22. Those of the operator designated by the State to provide the universal postal service, in order to provide the services of collection, acceptance, transport, sorting, distribution and delivery for the sole purpose of guaranteeing said universal postal service.
23. Those that provide services in those sectors or subsectors that participate in the import and supply of health material, such as logistics, transport, storage, customs transit (freight forwarders) companies and, in general, all those that participate in the health corridors.
24. Those who work in the distribution and delivery of products purchased through internet, telephone or mail order.
25. Any other businesses providing services deemed essential.
NOTE: If your business is essential or the minimum necessary, we have prepared a certificate that employees must carry when traveling to their workplace.
Minimum essential services of the company. Certificate that employees must carry when traveling to their workplace.
Mr./Ms. ____________________, with national identity document ___________, in my capacity as administrator of the company ______________________, with tax identification number B____________, and registered office at Calle ________________________, in _________, a company dedicated to the activity of _______________ and, for the purposes of this document, with contact telephone number _____________ and email address ______________________
That by virtue of Royal Decree 463/2020, of March 14, declaring a state of alarm due to the health crisis caused by the COVID-19 pandemic, in relation to Royal Decree-Law 10/2020, of March 29, regulating a recoverable paid leave for employees who do not provide essential services, in order to reduce population mobility in the context of the fight against COVID-19:
CERTIFIES
That the paid leave does not apply to the employee of the company specified above, Mr./Ms._________________, with national identity document __________________. To provide the minimum essential services of the company, requiring your attendance and presence at the workplace, in accordance with Article 5 of Royal Decree-Law 10/2020, of March 29.
And to certify this, I sign this certificate, in _______, on March 30, 2020.
Mr./Ms. ___________________
Administrator _________________
You can contact this professional office for any questions or clarifications you may have.
Warm regards,
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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