The brief guide attempts to cover the most basic issues related to employment matters and occupation risk prevention that may affect businesses and their staff. Nevertheless, as stated in the guide itself, the information contained therein is not definitive, but it may be amended depending on the measures that the Ministry of Health may adopt at any given time.
The content of the guide is essentially divided into two sections: one related to measures in the area of occupational risk prevention, to be adopted by both employers and employees, and another covering potential employment-related measures to be adopted.
Regarding the first issue, the guide reiterates the employment-law obligation for every employer to ensure the health and safety of all employees under his or her supervision and control. This therefore implies the need to take as many preventive measures as necessary – and possible – to avoid the spread of infection among employees and, therefore, ensure their health and safety. Accordingly, the guide sets out preventive measures, which must be adopted in accordance with the instructions of the prevention services, such as: (i) organising work in such a way as to reduce the number of employees exposed by putting rules in place to avoid and reduce the frequency and type of person-to-person contact; (ii) adopting, where appropriate, specific measures for highly vulnerable employees; (iii) providing information on proper hygiene practices, such as frequent hand washing, not sharing items, workplace ventilation, and cleaning surfaces and objects. It should be noted that the guide itself refers – and includes a link – to the Action Procedure issued by Occupational Risk Prevention Services against exposure to the novel coronavirus (SARS-COV-2), issued by the Ministry of Health on 28 February. This procedure includes a series of measures to handle the coronavirus crisis.
The guide also includes other additional measures in the area of occupational risk prevention that, although they may appear very drastic at first sight, could be implemented depending on the actual impact of the coronavirus. Consequently, the guide foresees the possibility of company suspending its activity if there is a serious and imminent risk for employees. This is based on Article 21 of the Law on the Prevention of Occupational Risks. This suspension may be imposed by the employer, if it detects the serious and imminent risk, or by the employees themselves, by majority decision, when there is a serious and imminent risk of transmission, which requires the presence of substantiated evidence to support it. It should therefore be understood that activity should only be suspended when there is a “genuine” risk of infection that cannot be safely dealt with by other less drastic measures, at all times in accordance with the criteria issued by the health authorities. It should be highlighted that the guide insists on the need to interpret the concept of “serious and imminent risk” restrictively.
In addition, the guide sets out the employment-related measures that the employer can adopt. Firstly, in line with a preventive measure from an occupational risk prevention perspective, teleworking may be implemented as an alternative option to working from the office. However, a series of conditions must be met: (i) it must be a temporary and extraordinary measure; (ii) the teleworking conditions must be in accordance with legal and contractual requirements; (iii) it cannot lead to a reduction in the health and safety or professional rights of the employees; and (iv) if technological means are required to carry out the work, this must not imply any cost for the employees.
The guide also establishes the possibility of the employer carrying out measures to suspend activity totally or partially by means of temporary layoffs and/or reduction of working hours, if the effects of the coronavirus affect production or if so decided by health authorities. It also stipulates that this temporary measure could be covered even by the force majeure provisions of the Workers’ Statute. The guide states that in order to adopt these employment adjustment measures, they must be carried out using the channels provided for in law (Article 47 of the Workers’ Statute).
This guide should be considered in conjunction with Criterion 2/2020, which was issued by the Ministry of Inclusion, Social Security and Migration last week. As for employees who have had contact with a case of Coronavirus and could be infected, the criterion establishes that the period they are subject to preventive quarantine, to avoid infecting others, will be treated as a paid temporary medical leave and they will be entitled to the relevant social security benefits until they are actually diagnosed with coronavirus or not.
