INFORMATION CIRCULAR Social measures in defense of employment of RD-law 18/2020 - BOE 05-13-2020 -

Specialties IN ERTE due to force majeure derived from COVID-19

The RD-law 18/2020 establishes that the companies and entities accepted to an ERTE due to force majeure under the article 22 of Royal Decree-Law 8/2020, will continue in situation of TOTAL FORCE MAJEURE derived from COVID-19, while the causes last that motivated her, that prevent restart of the activity, and in no case beyond June 30, 2020.

Companies and entities that have an ERTE authorized by force majeure of COVID-19 based on the aforementioned article 22, will be in a situation of partial force majeure derived from COVID-19, since the moment in which the causes that motivated it allow the partial recovery of their activity, until June 30, 2020. The partial reincorporation will be carried out to the extent necessary for the development of its activity, excelling adjustments in terms of reduction of working hours.

Companies and entities they must notify the labor authority total waiver, if applicable, to the authorized ERTE, within the 15 days from the date of effect of that. They must also notify the SEPE of the variations regarding the completion of the application of the measure with respect to all or part of the people affected.

By agreement of the Council of Ministers an extension may be established of the ERTE due to force majeure linked to COVID-19, arrived on June 30, 2020.

In the ERTE by total force majeure derived from COVID-19 the following will apply exoneration of the payment of the business contribution and for concepts of joint collection, of quotes accrued in the months of May and June 2020 (the same as that applied during the months of March and April):

  • The exemption will be 100% when the company, on February 29, 2020, had less than 50 workers, or assimilated to them, in situation of high in the Social Security
  • The exemption will be 75% when the company, on February 29, 2020, had 50 or more workers, or assimilated to them, in situation of high in the Social Security

In the ERTE by partial force majeure derived from COVID-19 the following will apply exoneration of the payment of the business contribution and for concepts of joint collection, of quotes:

Regarding workers who restart their activity, and from the date of resignation and the periods and percentages of hours worked since that restart:

- the exemption will reach 85% of the business contribution accrued in May 2020, and 70% of the accrued in June 2020, when the company had less than 50 workers or assimilated to the same, registered in Social Security as of February 29, 2020.

- the exemption will reach 60% of the business contribution accrued in May 2020, and 45% of the accrued in June 2020, when the company had 50 or more workers or assimilated to them, registered in Social Security as of February 29, 2020

Regarding the workers of these companies who continue with their suspended activities as of the date of the resignation and the periods and percentages of hours affected by the suspension:

  • the exemption will reach 60 % of the earned business contribution in May 2020 and the 45 % of the accrued in June 2020, when the company had less than 50 workers or assimilated to them in a situation of registration with Social Security as of February 29, 2020.
  • the exemption will reach 45 % of the business contribution accrued in May 2020 and the 30 % of the accrued in June 2020, when the company had 50 or more workers or assimilated to them in a situation of registration with Social Security as of February 29, 2020.

The exemptions in the listing will be applied by the TGSS at the request of the company, previous communication on the situation of total or partial force majeure, as well as the identification of the affected workers and period of suspension or reduction of working hours.

By agreement of the Council of Ministers may be extended the exemptions in the price of ERTE due to force majeure, or extend them to the ERTE based on objective causes, for the period of time and percentages that are determined in it.

Companies and entities that have their tax domicile in countries or territories classified as tax havens according to current regulations they will not be allowed to this new regulation of ERTE due to force majeure.

It also does not allow the distribution of dividends in those commercial companies or other legal entities that avail themselves of the new ERTE regulation due to force majeure, corresponding to the fiscal year in which the ERTE is applied, excepto si previously pay the amount corresponding to the applied exemption, or except in the case that they are entities, that as of February 29, 2020, had fewer than 50 workers or similar.

Specialties in ERTE for objective causes (ETOP)

To ERTEs based on economic, technical, organizational and production causes (ERTE ETOP) initiated from 05-13-2020 and until June 30, 2020, will result from application of article 23 of RD-law 8/2020 (ETE ETOP related to COVID-19), with the following specialties:

  • The processing of these ERTE ETOP may start as long as an ERTE is in force majeure derived from COVID-19

  • When the ERTE by ETOP is initiated after the completion of an ERTE due to force majeure derived from COVID-19, the effect date del ERTO ETOP will roll back at the ERTE end date due to force majeure, to avoid interruptions.

Los ERTE ETOP effective as of 05-13-2020 will continue to be applicable in terms provided for in the company's final communication And till the term referred to therein.

Extraordinary measures regarding unemployment protection

The extraordinary unemployment protection measures provided for in article 25.1 to 5 of RD-law 8/2020, in application of ERTEs due to force majeure or ETOP related to COVID-19, will be applicable until June 30, 2020. By agreement of the Council of Ministers it may be extended.

The extraordinary measures regarding unemployment protection regulated in article 25.6 of RD-law 8/2020, for discontinuous permanent 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 consequence of the impact of COVID-19, They will be applicable until December 31, 2020.

employment safeguard clause for a period of 6 months

The modification of the Sixth DA of RD-law 8/2020 establishes the company commitment to maintain employment during the period of six months from the date of resumption of the activity, understanding by such the reinstatement to effective work of people affected by the file, even if it is partial or only affects part of the workforce, and clarifying that the commitment will only be applicable to the ERTE due to force majeure linked to COVID-19.

The commitment to maintaining employment not be applicable in those companies where a bankruptcy risk in the terms of article 5.2 of Insolvency Law 22/2003.

It establishes the cases in which said commitment will not be considered breached, and the duty to reimburse the entire amount of the contributions from whose payment they were exonerated, with the corresponding surcharge and default interest, in case of default.

In addition, the commitment to maintaining employment will be valued in attention to the specific characteristics of the different sectors and the applicable labor regulations, taking into account, in particular, the specificities of those companies that present a high variability or seasonality of employment.

Validity of some measures provided for in RD-law 9/2020

Article 2 of RD-law 9/2020 that, in relation to unemployment protection, establishes that force majeure and ETOP causes in which the ERTE of COVID-19 of articles 22 and 23 of RD-law 8/2020 are covered they cannot be understood as justifications for the termination of the employment contract or dismissal, will remain in effect until June 30, 2020.

Article 5 of RD-law 9/2020, which establishes 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, will mean the interruption of the computation, both of the duration of these contracts, and of the periods of equivalent reference to the suspended period, in each of these contractual modalities, with respect to the workers affected by them, will remain in effect until June 30, 2020.