Lear about the protection for unemployment due to COVID-19: we explain how Employment Law works in Spain facing the coronavirus outbreak.
Protection for unemployment as a result of Erte due to force majeure or for economic, technical, organizational and production reasons
As long as the extraordinary situation derived from the COVID-19 continues, to those included in article 264 of the LGSS and to those who have the status of working partners of companies and associated work cooperatives who are listed for unemployment, whose relationship work or company started before March 18, 2020 (date of entry into force of the RDL) that are affected by the decision of their companies to suspend contracts or temporarily reduce the workday due to force majeure or economic reasons, technical, organizational and production, under the provisions of article 47 of the ET, based on extraordinary circumstances regulated in the RDL, or when their companies are already involved in communicated, authorized or initiated procedures before March 18 and based on the causes set forth therein:
- The contributory unemployment benefit will be recognized (title III of the General Social Security Law –LGSS–) even if they lack the minimum period of listed employment necessary for it.
- They will not be computed the time in which the contributory level unemployment benefit is received that brings their immediate cause of the aforementioned extraordinary circumstances, for the purposes of consuming the maximum periods of perception established.
These measures will be applicable to the affected workers if, at the time of the adoption of the business decision:
- had a prior right to unemployment benefit or subsidy suspended,
- they lacked the minimum period of listed employment to cause the right to a contributory benefit, or
- they had not received any previous unemployment benefit.
In these cases, a new right to the contributory unemployment benefit will be recognized, with the following specialties regarding the amount and duration:
- The regulatory basis of the benefit will be the result of computing the average of the bases of the last 180 days listed or, failing that, of the lower period of time, immediately prior to the legal situation of unemployment, worked under the relationship affected by the extraordinary circumstances that have directly caused the suspension of the contract or the reduction of the working day.
- The duration of the benefit will last until the end of the period of suspension of the employment contract or temporary reduction of the workday for which it is caused.
The procedure for recognizing the right to unemployment benefit shall be in accordance with the provisions of the legal and regulatory provisions for the cases of temporary suspension of the contract or temporary reduction of the working day for economic, technical, organizational, production or force reasons. greater and in the case of cooperative worker members, the accreditation of legal unemployment situations will require that the causes that have caused the ERTE have been duly verified by the labour authority in accordance with the procedure regulated in Royal Decree 42/1996.
If you have been affected by an ERTE
If you have been affected by an ERTE, you do not have to request an appointment with the SEPE, since the management of your benefit will be processed between your company and the SEPE.
The companies that have filed an ERTE for these causes will make the collective application for unemployment benefits on behalf of the workers affected by it before the SEPE.
Persons working fixed discontinued and for which they perform fixed and periodic works that repeat on certain dates
Special rules are established for the group of discontinuous fixed workers and for those who perform fixed and periodic jobs that are repeated on certain dates, who have had their employment contracts suspended as a result of COVID-19 during periods that would have been of activity in normal circumstances.
For them it is established that:
- When they become legally unemployed again, they may receive the unemployment benefit again with a maximum limit of 90 days.
- In order to determine the period that would have been of labour activity if the crisis of COVID-19 had not occurred, the actual worked during the previous calendar year will be taken based on the same employment contract. If it were the first year, the periods of activity of other comparable workers in the company will be taken.
- The measure will be applied to the same consumed right.
- It will be recognized ex officio by the managing entity when the interested party requests its resumption.
Temporary exception of the effects of submitting out-of-term requests for unemployment benefits
The presentation of the applications for initial registration or resumption of the benefit and unemployment benefit made outside the legally established deadlines (arts. 268.2 and 276.1 LGSS) will not imply that the duration of the right to the corresponding benefit is reduced and this while they continue extraordinary public health measures in force to combat COVID-19, which limit the mobility of citizens or affect the operation of public services that manage unemployment protection.
This measure will also be applied to those affected by ERTE communicated, authorized or initiated before March 18, provided they derive directly from COVID-19.
Prohibition of objective dismissal
Despite the advantages in the ERTE and the call to prioritize teleworking (impossible in many occupations), the unions asked the Government to limit by law the possibility of dismissing during the health crisis because an enormous number of layoffs and terminations were taking place of temporary contracts, assured the leaders of CCOO and UGT. The Government finally approved the prohibition to dismiss objectively due to the coronavirus since Saturday, March 28, as well as to terminate temporary contracts for this reason.
Companies cannot objectively fire because of the coronavirus crisis, with the 20 days per year worked for compensation. They continue to have access to the disciplinary and objective dismissal for reasons not related to COVID-19, but if it is shown that a company has dismissed a person for this health crisis, the dismissal would be considered inadmissible, with compensation of 33 days per year worked.
Interruption of the computation of duration of temporary contracts
The suspension time of the temporary contracts by ERTE due to force majeure or ETOP causes derived from the covid-19 will interrupt the calculation of its duration (art. 5).
The exceptional nature of the situation of paralysis of economic activity due to the declaration of the state of alarm to face COVID-19 is considered to be so for all purposes, also for temporary hiring, establishing the following measure:
- The suspension of temporary contracts, including formative, relief and interim contracts, by ERTE due to force majeure or ETOP causes (arts. 22 and 23 RDL 8/2020) will suppose the interruption of the calculation of their duration and the periods of equivalent references to the period suspended with respect to the affected workers.
Article 5 of Royal Decree-Law 9/2020, March 27, BOE, 28 provides for the interruption of the calculation of the maximum duration of temporary contracts. It indicates, in this sense, that the suspension of temporary contracts, including formative, relief and interim contracts, for the causes provided for in articles 22 and 23 of Royal Decree-Law 8/2020, of March 17, BOE, 18 , will mean the interruption of the computation, both of the duration of these contracts, and of the reference periods equivalent to the suspended period, in each of these contractual modalities, with respect to the workers affected by them.
Recoverable retributed permit
Royal Decree-Law 10/2020, of March 29, regulates a Recoverable Paid Permit for employed personnel on behalf of others, mandatory and limited in time between March 30 and April 9 (both included), for all work personnel employed by others who provide services in companies or entities of the public or private sector that carry out the non-essential activities classified as such in the annex.
Characteristics of paid leave (art. 2 Royal Decree-Law 10/2020, of March 29):
- Workers will enjoy a special paid leave during the indicated dates, subject to the maintenance of the remuneration and the subsequent recovery of lost working hours. That is to say:
- Your enjoyment will be mandatory between March 30 and April 9, 2020, inclusive.
- During the same, the remuneration that would have been received had been deducted from ordinary services, including base salary and salary supplements.
- It is recoverable.
- The recovery of working hours may be effective from the day following the end of the alarm state until December 31, 2020.
- This recovery must be negotiated in a consultation period open for this purpose between the company and the legal representation of the working people, which will have a maximum duration of seven days.
- The recovery of these hours may not suppose the breach of the minimum daily and weekly rest periods provided for in the law and in the collective agreement, the establishment of a notice period less than that set forth in article 34.2 of the Statute Law Workers, or exceeding the maximum annual working day provided for in the applicable collective agreement.
- The rights of conciliation of personal, work and family life recognized legally and conventionally must be respected.
An exceptional unemployment benefit for the end of a temporary contract has been created (art. 33 and Disp. Trans. 3rd RDL)
This subsidy is established to alleviate the situation of lack of protection in which workers with temporary contracts may find themselves, whose termination has occurred after the declaration of the state of alarm in order to equate their situation as much as possible to that of the people that have been included in an ERTE and have been able to access, even without fulfilling the established deficiency, the corresponding unemployment benefit.
Beneficiaries: Working people who meet the following requirements:
- Extinction of a fixed-term contract of at least 2 months duration, after March 14, 2020 (date of declaration of the state of alarm).
- Lack of income under the terms established in article 275 of the LGSS.
- Failure to meet the contribution period necessary to access another benefit or subsidy.
This subsidy will also be recognized to people with interim, training and relief contracts.
Amount: This exceptional subsidy will consist of a monthly aid of 80% of the current monthly public indicator of multiple effects income (IPREM) [80% x 537.84 euros (IPREM 2020): 430.27 euros / month].
Duration: 1 month, extendable if determined by royal decree-law.
Incompatibility: This subsidy will be incompatible with the perception of any minimum income, inclusion income, social salary or similar aid granted by any public Administration.
Processing: SEPE will establish the procedure for processing applications, forms to use, processing system (face-to-face or telematic) and deadlines for submission within a period that will expire on May 1.
One of the main measures has been aimed at the self-employed with the approval of an extraordinary benefit with the aim of mitigating the negative effects on their businesses of the COVID-19 pandemic, whose main keys we discussed in this guide, today we tell you how to request it.
Beneficiaries: the benefit can be requested by any self-employed worker registered in the corresponding regime who is affected by the closure of businesses due to the declaration of the state of alarm or whose turnover this month falls by 75% compared to the monthly average of the previous semester.
The worker must be up to date in the payment of contributions to Social Security. However, if this requirement is not met, the self-employed worker will have a period of thirty calendar days to enter
Processing: in general, the management of this benefit will correspond to the mutual collaborator with the Social Security to which the worker is assigned. In the case of the self-employed who have arranged protection for professional contingencies with the INSS, the management corresponds to the SEPE.
Currently, mutuals and ISM (and SEPE) have enabled forms on their web pages to download the application and attach the relevant documentation to carry out the management in a completely electronic way.
Documentation to present
- Cessation of activity due to force majeure: the self-employed worker must present an affidavit stating the date of the production of force majeure (declaration of the state of alarm, March 14). The standard model of each mutual will be used.
- Loss of income: you must provide accounting information that justifies it: copy of the record book of invoices issued and received; the daily book of income and expenses; from the sales and income record book; or the purchase and expenses book. In the case of the self-employed who are not obliged to carry the aforementioned accounting documents, any means of evidence admitted in law will be accepted.
In addition, every request must be accompanied by an affidavit stating that they meet all the requirements required to qualify for this benefit.
Application deadline: the application can be presented since March 18, with the entry into force of the measure, although the right will be recognized from March 14, the date of the declaration of the state of alarm.
The deadline to request the benefit is one month (until April 14) from the entry into force, notwithstanding that the measures adopted in the event of an extension of the state of alarm may be modified.
Term of resolution: Article 11.5 of Royal Decree 1541/2011 provides that the corresponding mutual will resolve the request within 30 business days of receipt with all the required documentation. But given the seriousness of the situation, mutuals are making a significant effort to drastically shorten this period.
Payment of contributions: During the receipt of the benefit, the Social Security (TGSS) will not collect contributions, and will also be counted as a period of contributions.
If the extraordinary benefit is recognized by the mutual after the TGSS has paid the fees, the TGSS will automatically return the fees that the self-employed workers have paid when they overlap with the extraordinary benefit for cessation of activity, without having that to request it, and once the entrance of the quotas and the concession of the benefit is verified. Although you can also request the return of them through the RED System.
- The self-employed worker who suspends the activity will not be obliged to process the withdrawal during the period of receipt of the extraordinary benefit for cessation of activity.
- If the cause of the right to the benefit is the reduction in billing, you must remain registered in the corresponding Social Security system.
HOUSEHOLD EMPLOYEE SUBSIDY
- Be registered in Social Security before March 14, 2020
- Being in any of the following situations:
- Having temporarily stopped working to reduce the risk of contagion of the covid-19, in all or part of its activity. It looks like a “suspension” of the employment contract.
- Having been fired due to the covid-19 health crisis. Here yes there is extinction of the labor relation.
Incompatibilities: The payment of this subsidy will not correspond if you are in a situation of temporary disability, or in the situation of paid leave from March 30 to April 9 (you have stopped going to work but they will pay you your salary and later you will recover the hours not worked).
- In the case of “suspension”: with a responsible declaration signed by the employer (the boss).
- In the case of dismissal: with the dismissal letter, the communication of the withdrawal of the employer or a certificate of withdrawal from the Special System of Household Employees.
Amount: It is monthly and represents 70% of the contribution base of the last month. The subsidy cannot exceed € 950 in any case. If you do not work every day the same number of hours, a monthly average is made.
Reduction of working hours: if you have only stopped working in some homes, or reduced the hours you go to them, you can collect the salary of the work you continue to do and the subsidy corresponding to the part where the work has been reduced, with the limit of € 1,108.
Time: Since you stopped going to work or from the date of dismissal.
The first is established according to the date that appears in the Responsible Declaration signed by your employer. The second for the date of withdrawal from Social Security.
If you worked without being registered, you cannot collect the subsidy.
In conclusion, these are the measures at a general level that are more specific and that are considered useful to be able to incardinate in one or the other situation, adopted by the Government to mitigate the negative labor effects that Covid-19 brings with it due to the paralysis of non-essential social and productive activities.
The following are a series of general questions and answers aimed at resolving possible general doubts.
- Are temporary workers affected by an ERTE as a consequence of COVID-19 also entitled to unemployment benefit?
Yes, all workers affected by the extraordinary measures who were working before March 18, 2020, including temporary workers, will be entitled to the unemployment tax benefit.
- I am a worker affected by an ERTE as a consequence of COVID-19 in a company where I work part-time and I also have a full-time contract in another company. Could I collect unemployment benefit for what I stop working?
Since he holds another full-time job, there is an incompatibility situation that does not allow him to access unemployment benefits. You will not be entitled to unemployment benefit as long as this situation continues.
- I am hired part-time by two companies. In one of them we are in ERTE of suspension by COVID-19 from March 24. The other company, which is cleaning, is not going to suspend the activity as it is considered essential so I will continue working. Can I collect unemployment benefit for what I have stopped working?
Yes, you can access unemployment benefit, but it will be proportional to the time you work in the contract that you maintain will be deducted from the amount to be received.
- I am registered as a self-employed worker in RETA and I also work part-time in a company that has included me in an ERTE as a consequence of COVID-19. Would you be entitled to receive unemployment benefit?
Self-employment is incompatible with unemployment benefits or subsidies. If you were registered as a self-employed worker on the date on which you are affected by the measure or on the date on which the right arose, you would not have the right because you would not be unemployed.
- I work in a company that has included me in an ERTE due to the coronavirus crisis and also in domestic service. Do I have the right to access unemployment benefit?
You may access unemployment benefit for the contract affected by the suspension or reduction of working hours, provided that the work in domestic service is part-time. In that case, the part proportional to the time worked in the home employee contract that is maintained will be deducted from the amount of the benefit.
- I suspended an unemployment benefit because I started working three months ago in a company that has now received a suspension ERTE due to Covid-19. Do I have to resume my suspended benefit?
You do not have to resume your service, but you can receive a new one during the time that your contract is suspended by Covid-19, without consuming the previous one. If, in the future, you become unemployed again, in order to determine your right, you will act as if you were not recognized now. You can resume the service that was suspended in its day or, where appropriate, request a new one.
- I suspended a subsidy six months ago because I started working for someone else in a company that now, because of Covid-19, has included me in an ERTE. Since I do not have enough period to receive a contributory benefit, would I now have to resume the same subsidy that I had suspended or will I start another subsidy?
You will be recognized a contributory unemployment benefit, and will receive it as long as your contract is suspended or your working day is reduced for this reason. The interrupted subsidy may be resumed when you are again in a legal situation of unemployment, unless you are then entitled to a contributory benefit.
- My company has not done an ERTE but has sent half of the workers to the streets, due to the 6-month commitment. Will I be entitled to unemployment if I have not been listed for more than 8 months?
The benefit regulated in Royal Decree-Law 8/2020 is extraordinary and applicable only to people who see their work suspended or their hours reduced due to an ERTE derived from Covid-19. If you are not in this extraordinary situation, you must have contributed a minimum of 360 days, in the last 6 years, to access a contributory unemployment benefit. However, you may be able to access a subsidy for insufficient contributions.