19 Mar

SIMPLIFIED PROCEDURE FOR FILING AN ERTE FOR A SITUATION OF FORCE MAJEURE

Bernardo Martínez | Corporate Services, ERTE

As a complement to the information we have published recently, we inform you that due to the release of the Real Decreto-Ley 8/2020, de 17 de marzo, de medidas urgentes extraordinarias para hacer frente al impacto económico y social del COVID-19, a series of complementary regulations have been approved with regard to the conditions governing the Temporary Employment Regulation Files (ERTE) filed by companies with the purpose of overcoming the economic consequences arising from COVID -19.

Procedimiento ERTE ingles

 

it is worth mentioning that the regulations published by the Executive are intended to legislate on general aspects applicable to companies in a situation that is constantly changing and evolving, so it is advisable to analyze the individual situation of each entity, attending to its particular circumstances.

In this sense, we remind you that our team of professionals is at your service to analyze and clarify any doubts you may have regarding this information, and especially to make a precise assessment of your specific case.

If you have any questions regarding this information, please do not hesitate in contacting our Client Management team (Cristina Hernández (+34) 678 46 43 66 / Gisleno Castro (+34) 670 268 533)

SIMPLIFIED PROCEDURE FOR FILING AN ERTE FOR A SITUATION OF FORCE MAJEURE (FM)

Companies may file an ERTE due to a situation of Force Majeure, when the suspension of contracts or the proposed reductions in working hours have their direct cause in a loss of activity as a consequence of COVID-19, including the declaration of the state of alarm, which implies:

  • Suspension of activities
  • Temporary closure of public affluence premises
  • Restrictions on public transport and, in general, on the mobility of people and / or goods
  • Lack of supplies that seriously impede the development of the activity
  • Urgent and extraordinary situations due to the contagion of the employees or to the adoption of preventive isolation measures decreed by the health authority

In these cases, the following special considerations will apply regarding the procedure established by the applicable law:

i) Submission of the company's application before the labor authority, along with a report that analyzes the loss of activity as a consequence of COVID-19, as well as any other supporting documentation deemed appropriate. The company must communicate its request to the employees. The existence of a situation of force majeure must be verified by the labor authority.

ii) The report of the Labor and Social Security Inspection, whose request will be optional for the labor authority, will be drafted within the non-extendable period of five days.

SIMPLIFIED PROCEDURE FOR FILING AN ERTE FOR ECONOMIC, TECHNICAL, ORGANIZATIONAL OR PRODUCTION REASONS (ETOP)

Companies may also file an ERTE for economic, technical, organizational and production reasons related to COVID-19. In these cases, the following special considerations will apply regarding the procedure established by the applicable law:

  • The resolution of the labor authority will be issued within five days from the request, after a report, where appropriate, from the Labor and Social Security Inspection. The suspension of contracts or the reduction of working hours will be effective from the date of the situation that caused the force majeure.
  • In the event that there isn´t a legal representation of the employees, their representative commission for conducting the negotiations during the consultation period will be made up of the most representative unions in the sector to which the company belongs.
  • If the previous representative commission is not established, said commission will be made up of three employees from the company itself, chosen in accordance with the provisions of article 41.4 of the Spanish Workers' Statute. In any of the cases, the representative commission must be established within the non-extendable period of 5 days.
  • The consultation period with the employees' representatives or the representative commission shall not exceed the maximum period of 7 days.
  • The report of the Labor and Social Security Inspection, whose request will be optional for the labor authority, will be drafted within the non-extendable period of 7 days.

WHAT HAPPENS WITH SOCIAL SECURITY CONTRIBUTIONS DURING AN ERTE?

In the ERTEs authorized based on a temporary cause of Force Majeure linked to COVID-19, the General Treasury of Social Security will exonerate the company:

  • Of the payment of the business contribution established in article 273.2 of the Consolidated Text of the General Social Security Law,
  • Of the payment of the quotas regarding the “conceptos de recaudación conjunta”, while the period of suspension of contracts or reduction of working hours authorized based on said cause lasts.

The exemption from the obligation to contribute will reach 100% of the contribution if the company, on February 29, 2020, had less than 50 workers registered with Social Security. Otherwise, the exemption will reach 75% of the business contribution. The exemption from fees will be applied at the request of the employer.

Said exemption will have not effects for the employees, who will maintain the consideration of “period effectively quoted” for all purposes.

ACCESS TO THE UNEMPLOYMENT BENEFIT BY EMPLOYEES AFFECTED BY AN ERTE

In the cases in which the company requests the suspension of contracts or the reduction of the working hours based on extraordinary circumstances:

  • The right to the unemployment benefit will be recognized for the affected employees, even if they lack the minimum contribution period of paid employment required by Law.
  • The period during which the unemployment benefit is received will not be computed for the purposes of consuming the maximum period of perception established.

TRANSITORY LIMITATION OF THE EFFECTS OF EXTEMPORARY SUBMISSION OF APPLICATIONS FOR UNEMPLOYMENT BENEFITS

During the period of validity of extraordinary measures of public health that involve the limitation of the mobility of citizens, the submission of requests for initial registration or resumption of benefits and unemployment benefits made outside the legally established deadlines, will not imply that the duration of the right to the corresponding benefit is reduced.

TERM OF THE EXTRAORDINARY MEASURES

The aforementioned measures will be in force as long as the extraordinary situation derived from COVID-19 is maintained.

EMPLOYMENT SAFEGUARD

Extraordinary labor measures will be subject to the company's commitment to maintain employment levels for a period of six months from the date of resumption of activity.

LIMITATION ON THE APPLICATION OF EXCEPTIONAL BENEFITS TO TEMPORARY EMPLOYMENT REGULATION FILES

The simplified procedures mentioned in the first sections will not apply to ERTEs initiated or communicated before March 18, 2020.

The extraordinary measures regarding contributions and unemployment protection will be applied to those employees affected by the procedures for suspension of contracts and reduction of working hours communicated, authorized or initiated prior to March 18, 2020, provided they derive directly from COVID-19 situation.

If you have any more questions or want us to help you, please contact our Client Management team (Cristina Hernández (+34) 678 46 43 66 / Gisleno Castro (+34) 670 268 533)

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