MAREMAGNUM Labor Regulations in times of coronavirus

Who was going to tell us all that this could happen? Who would have imagined that reading the Official State Gazette would become a must almost every day? Who could think that any businessman, who has worked all his life to get his company going, would have to be forced to submit an ERTE? ERTE- Temporary employment regulation file- a word that resonates in the ears of all Spaniards and that is spoken of on a daily basis. However, as I indicated at the beginning, what we have experienced and for now, we will continue to live, is a regulatory tidal wave in which what is valid today is not valid tomorrow, where lawyers must read the rule hundreds of times due to its inconcreteness, vagueness leading to different interpretations, and having to keep in mind, on a daily basis, the different publications that follow one another. Royal Decree-Law 8/2020, of 17 Marchwhich adopts extraordinary urgent measures to address the economic and social impact of Covid-19, which came into force on March 18, 2020, was the starting gun for the different regulations that have been initiated in labor matters, including new procedures regarding ERTES due to force majeure and ERTES for economic, productive, technical and organizational causes, highlighting three fundamental aspects such as the concrete definition of what the cause of force majeure implies in these emergency circumstances; the establishment of procedural peculiarities that will result in a simplification of requirements and, finally, the establishment of exemption from contributions to companies and issues related to unemployment benefits for workers. The definition of force majeure is established for those ERTES in which contract suspensions and reductions in working hours are directly caused by losses of activity as a result of COVID-19, including the declaration of a state of alarm, involving suspension or cancellation of activities, temporary closure of places of public influx, restrictions on public transport and, in general, on the mobility of people and/ or goods, lack of supplies that seriously prevent continuing with the ordinary development of the activity, the contagion of the workforce or the adoption of preventive isolation measures decreed by the health authority. The deadlines, as I mentioned before, are considerably reduced, but we have all already been able to appreciate that they were indeed impossible to comply with, which means that a new Real must be published Decree-Law 9/2020, of March 27 which complement those adopted in theRoyal Decree-Law 8/2020in order to alleviate the devastating effects of COVID-19 in our labor market, where it clarifies, among other measures, that the time limit of tacit decisions relapsed to ERTE due to force majeure - the so-called positive administrative silence - cannot represent a maximum duration other than that applicable to express resolutions, that is, whether the ERTE has been expressly authorized or not and regardless of the content of the request by the company in terms of dates, its maximum duration will be that of the state of Alarm and possible extensions. Here, each and every one of us who, to a greater or lesser extent, make up this sector, we wonder what happens to those travel agencies, hotel establishments, airlines, organizers of language courses, etc. when the state of alarm ends? Should workers be readmitted, regardless of whether borders are still closed, not be allowed to travel to other countries? The request or even demand of the sector regarding the extension of ERTES due to force majeure is a need, a reality that has been put on the table and that the Government of Spain has the obligation to listen to, but, to date, nothing is known about it, although if I am honest, it may be that by the time you are reading these words something has been published that turns what a servant has written upside down, you never know. To expand this tidal wave, on May 1, worker's day, the Directorate General of Labor, under the Secretary of State for Employment and Social Economy, of the Ministry of Labor and Social Economy, has issued her “Criteria on the application of measures to suspend and reduce working hours during the lockdown phase of the state of alarm”, stating the following:”In this way, companies that are applying the measures of suspension or reduction of working hours can renounce them, totally or partially, with respect to part or all of the workforce, and progressively as the reasons related to force majeure disappear. It will also be possible to alter the suspensive measure initially proposed and facilitate the transition to reductions in working hours, which have a lower economic impact on the working person and will make it possible to meet the gradually growing supply and demand for products and services of companies”Alluding to the de-escalation of the Government, this criterion attempts to clarify this return to activity as of today, May 4, where what will be allowed is a partial incorporation into the activity of workers, also establishing a criterion regarding procedural and documentary requirements, expressly stating that “it will be enough to communicate to the labor authority the waiver of the authorized or communicated measure, in the event of an integrated recovery of the activity, and to transfer to the entity managing the benefits the condition and disaffection of each of the workers, so that the temporary employment regulation file serves to guarantee a non-traumatic transition to a future normality in which short-term measures are no longer necessary”.So far, nothing has been published, although no comment has been made, regarding the extension of ERTES due to force majeure or even their conversation in ERTES for economic, productive, technical or organizational reasons. With the need, companies in the sector, to analyze the situation of their company, to see the viability for the future and to make a decision as soon as possible, for the purpose of presenting a new ERTE, in this case for ETOP reasons, in order to preserve both the company itself and the employment stability of its employees and their continuity. ERTE ETOP may be the only solution to this problem, in order to provide that continuity to a sector, that of TOURISM, which does so much for this country, which creates thousands and thousands of jobs and which has to be recognized at some point, or so we all hope so. As I always say, we are not an essential service but if necessary, and on the part of the entire T&L team we will be there to help all companies in the tourism sector as we have been and continue to do throughout all these years.

Mª Paz Abad (Lawyer-Director T&L)