Criterion on the application of the measures of suspension and reduction in working hours during the phase of desconfinamiento of the state of emergency.
Document aclaratorio of the Directorate General of Work on the extension of the ERTE.
What is an ERTE, specifically in the situations of COVID-19?
It is the procedure that they have to carry out companies when, as a result of economic reasons, techniques, organisational or of production, they have temporarily suspend the entirety or part of its activity, with the consequent suspension of employment contracts or the temporary reduction of the work day of hard-working people in this company.
The extent and duration of the measures of suspension of the contracts or of reduction in working hours will be adapted to the current situation that is expected to exceed, in this case to the situation derived from the COVID-19.
When being a temporary measure, the company will not have to pay indemnity some to the hard-working people affected, without prejudice to the right of these to receive corresponding provisions of unemployment.
Definition and clarification of the concept of force majeure
The Actual one decree-law 8/2020 specifies in what consists the temporary force majeure derived from the Covid-19:
The suspensions of contract and reductions in working hours that have its direct cause in as a result direct activity losses of the COVID-19, included the statement of the state of emergency, that involve:
- activities suspension or cancellation,
- temporary close of local of public influx,
- restrictions in the public transport and of the mobility of people and/or merchandises,
- lack of supplies that they impede seriously to continue with the ordinary development of the activity,
and also the owed extraordinary and urgent situations to the contagion of the staff or the adoption of isolation measures preventive decreed by the health authority.
What date of effect have the ERTE that they have its direct cause as a result of the COVID 19?
The date of effects is the date of the application of the ERTE, being able to coincide or not with the date of statement of the state of emergency. In the communication of the ERTE is owed of filling the start date and the end date of the ERTE, owing carry out the same communication of start date and end date to the SEPE in the certificate of company, once approved by the labour authority.
How present an ERTE if I do not have electronic certificate?
The company will send an email to firstname.lastname@example.org indicating a contact phone number, the address of the work centres and a relationship of hard-working people for work centre. From that mail information will provide him to him on the way of proceeding.
Which is the procedure for the procedure of an ERTE due to force majeure derived from the COVID-19?
- The company will present an application before the appropriate work authority, that will be accompanied of a report that it justifies the activity loss as a result of the COVID-19, as well as, where applicable, of the corresponding supporting documentation. By way of example, in those companies dedicated to some trading activity that they have had completely stop this activity when being realised in the Annexe of the Royal Decree 463/2020, of 14 March, through which the state of emergency is declared, will be enough the presentation of any supporting document of the activity of the company.
- Similarly, the company should communicate the application of ERTE to the hard-working people and, in the event of existing, to the union depiction.
- The labour authority will verify the existence of force majeure as a cause motivadora of suspension of the contracts or of the requested reduction in working hours and it will dictate the declarative resolution of the existence or not of the force majeure within five days from the presentation of the application. Only in those suppositions in which the labour authority considers it necessary previous report will be requested to the Work and Social security Inspectorate.
- After receiving the resolution of the labour authority recognising the situation of force majeure, the company will communicate to the hard-working people measures of suspension of adopted contracts or reduction in working hours. These measures will supply effects from the date of the fact responsible for the force majeure.
- After this communication, to the hard-working people will be able to them to him to recognise the provision of unemployment. According to this, you can obtain complementary information on the website of the Public Service of State Employment (SEPE).
If I do not know in what date the company will be able to resume the activity, which is the final date that I must put in the document of presentation?
Logically if the ERTE is derived from the coronavirus, the duration of the ERTE must be the same one that that one of the state of emergency, included its possible extensions.
Any company that does an ERTE will be able to benefit from the exoneration of social contributions?
Yes, all company that does an ERTE due to force majeure because of the COVID-19 is payee of the exoneration.
- If the company has fewer than 50 workers, the contribution for suspended contracts and reduced working days is from scratch.
- If it has more than 50 workers, only will have to quote for 25% of these suspended or reduced working days contracts.
How much would have to pay if was not had approved this exoneration?
In the event of ERTE the company continues paying the business part of the contributions of the workers while hard the suspension or the reduction in working hours.
With the exoneration included big part is relieved in the Royal Decree or all this load to the companies.
Never mind the sector so that it is granted the ERTE?
The sector must be affected by the statement of the state of emergency and for the Coronavirus.
During the period established in the ERTE, the company has of paying remunerations or fees of Social Security Institute to its workers?
- During the period set in the ERTE the company does not have to pay remunerations to the hard-working people affected by the suspension. Similarly, in the supposition in which the ERTE contemplates the reduction in working hours, the company only will pay the proportional part corresponding to the made meeting.
- With respect to Social Security Institute's fees and, exclusively for motivated acts of god for the COVID-19 and while it lasts the period of contracts or reduction in working hours suspension: the General Treasury of the Social Security will exonerate to the company of the deposit of the business contributions, as well as of the one regarding fees for concepts of joint collection, provided that the company, on 29 February 2020, had fewer than 50 people workers registered with the Social Security. If the company had 50 hard-working people or more, the exoneration of the obligation of quoting will reach at 75% of the business contribution.
- For the purpose of the hard-working people, the above-mentioned period will be had as indeed quoted to all intents and purposes.
- The exoneration of fees will be applied by the General Treasury of the Social Security to application form of the company, previous communication of the identification of workers and period of the suspension or reduction in working hours. For the purpose of the control of the exoneration of fees will be enough the verification of that the Public Service of State Employment has proceeded to the examination of the corresponding unemployment benefit for the period of that is discussed. More information in Ministry of Inclusion, Social Security Institute and Migrations.
The administrative silence is considered positive for the ERTES requested starting from 18/03/2020?
Yes, positive is considered. The Actual decree-law 8/2020, in its article 22 does not establish no different peculiarity with respect to the regulated thing previously.
There are forms and models of documents for the presentation of the application of ERTE?
Once the E-Office of the Ministry of Labor and Social Economy is entered in the procedure for the presentation of ERTE derived from COVID-19 a small form is opened in registration of application that it must fill in. Below, the remaining compulsory documents are requested that they should present. For these documents there is no established model, which is why the company can make them as it considers more suitable. In case one is incomplete, during the procedure of the dossier will be requested its subsanación.
The contribution for unemployment of an ERTE for emergency will be taken into account for the calculation of future provisions?
Not, this charge will not be taken into account in the calculation of possible provisions future, will be as though was not had produced.
The institutions of the third sector can benefit from the exoneration of fees?
Yes, the institutions of the third sector also are covered for this decree and them will be of application measures that there are included.
What activities can and they can not present the ERTE due to force majeure derived from the COVID-19?
They can present the ERTE due to force majeure:
1) All companies to those which so much earlier as after the statement of the state of emergency does not result them possible to develop its activity for a decision taken by the Public Administration.
2) reasons affected by extraordinary and urgent linked with the preventive contagion or isolation (decreed by the health authorities).
3) All the that obliged to suspend are seen its activity as a result of the close of local of public influx, restrictions of the public transport or lack of supplies that it impedes seriously the continuity of the activity, provided that these causes are direct result of the COVID-19.
According to this would be included following activities:
- Public events.
- Relaxation and fun.
- Local of exhibitions.
- Night clubs.
- Other venues or assimilable facilities to the mentioned ones.
- Cultural and artistic: Auditoriums, Cinemas, Squares, enclosures and facilities taurine.
- Other enclosures and facilities: Pavilions of Congresses, Concert halls, Conference halls, Exhibition halls, multipurpose Chambers, Theatres.
- Sport: Local or closed enclosures, Football pitches, rugby, baseball and assimilable, Campos of basketball, handball, balonvolea and assimilable, Shooting ranges to the dish, of pigeon and assimilable, Galleries of shot, tennis Clues and assimilable, Clues of skating, ice hockey, on skates and assimilable, Swimming pools, Local of boxing, fight, judo and assimilable, permanent Circuits of motorbikes, cars and assimilable, Velodromes, Racecourses, canódromos and assimilable, Pediments, pawls, clues of squash and assimilable, Sports, Bowling alleys and assimilable, Living-rooms of billiard and assimilable, Gyms, Athletics tracks, Stadiums, Other venues, assimilable facilities or activities to the mentioned ones.
- Public open spaces and ways: Routes of footraces, test Routes cyclists, motorcyclists, automotive and assimilable, Routes of motocross, trial and assimilable, Tests and exhibitions navigations, Tests and exhibitions aeronautics, Other venues, assimilable facilities or activities to the mentioned ones.
- Recreational activities of dance: Dance discos and rooms, youth's Chambers.
- Recreational activities sport-recreational: Local or enclosures, without spectators, set aside for the practice sport-recreational of public use, in any of its types.
- Games and commitments: Casinos, collective game Establishments of money and chance, playing Living-rooms, Penny arcades, Raffles and tombolas, Other venues and assimilable facilities to those of recreational activity of Games and commitments in accordance with which it establishes the sectorial regulations with regard to game, Local specific to commitments.
- Cultural and of leisure: Amusement parks, fairs and assimilable, aquatic Parks, Casetas of fair, Zoos, child recreational Parks.
- Open and ways enclosures public: Verbenas, parades and holidays popular or folklorics demonstrations.
- Of leisure and fun - special Bars: Bars of glasses without live music performances, Bars of glasses with live music performances.
- Of leisure and fun - Of hospitality industry and restaurant services: Tabernas and wineries, Cafeterias, bars, coffee-bars and assimilable, Chocolaterías, ice-cream parlors, living-rooms of tea, croissanteries and assimilable, Restaurants, self-services of restaurant services and assimilable, bars-restaurant, hotels Bars and restaurants, except to give service to its boarders, Living-rooms of banquets, Terraces.
- Professional associations, universities and training establishments, in the terms of the article 9 of the royal decree through which the state of emergency is declared.
- As well as whatever other activities:
(I) that they have been suspended, cancelled or restricted by the royal decree through which the state of emergency and the royal decree is declared through which it modifies and
(II) that have been had to suspend because of the lack of supplies, to the contagion of the staff or the adoption of isolation measures preventive decreed by the health authority.
Remaining companies that obliged to present are seen an ERTE for the decrease of its activity as a result of different circumstances of the previous ones should justify in the report of presentation of the ERTE reasons through which consider that the ERTE is of force majeure, which will will be considered by the competent body for its resolution.
What effects has the ERTE on the hard-working people?
- The hard-working people affected by the ERTE will have right to the examination of the unemployment benefit, although they lack the period of quoted occupation minimum necessary to it.
- In such cases, the time in which the unemployment benefit of contributory level is received for these ERTE will not count to effects of consuming maximum provision periods legally established.
- In order to provide the procedure of the provisions, by the Public Service of State Employment is being worked in the regulation of a procedure that it allows the procedure of the unemployment without the need for individual application presentation. For this reason, the workers affected by the ERTE, so far, do not have to present no application, until it learns more about procedures in the next few days.
What ERTE you can present via the E-Office of Ministry of Labor and Social Economy?
- Via the E-Office of the Ministry of Labor and Social Economy you can only present the ERTE responsibility of this Ministry. That is, anyone who affect to workers that they provide services in work centres of more than an autonomous community.
- There is an exception: when the ERTE affects to workers that they provide services in work centres of more than an autonomous community, if at least 85% of workers of the staff total belongs to centres at an autonomous community and it there is affected in this Community, this is the competent one for the procedure of the ERTE.
What date of effect have the ERTES that they have its direct cause as a result of the COVID-19?
The date of effect is the date of the application being able to coincide or not with the date of statement of the state of emergency, is when the employer adopts to the decision of suspending contracts or of reducing the meeting, in the communication of the ERTE must fill the start date and of end of the ERTE owing carry out the same communication of start date and end date to the Public Service of State Employment (SEPE) in the certificate of company once approved by the labour authority.
To the ERTE made before the publication of the Act Royal Decree 8/2020 of March 18, provided that they are related to the COVID-19, them will be of application this regulations?
If, the section 2 of the transitory provision first of the Royal Decree – law 8/2020 arranges that these measures also will be of application to the ones affected by the procedures of contracts and reduction in working hours suspension statements, authorised or initiated, before the coming into force of this Actual one decree-law, provided that they derive directly of the COVID 19.
Which is the duration of the extraordinary measures of unemployment protection?
Are distinguished two situations when it comes to the duration of the unemployment:
- Authorised employment redundancy procedures under the protection of the article 22 (Royal Decree-Law 8/2020) – due to force majeure, its maximum duration will be that one of the state of emergency.
- Authorised employment redundancy procedures under the protection of the article 23 (Royal Decree-Law 8/2020) - for reasons ETOP caused by the COVID-19, its maximum duration to date will be end settled on the employer.
If a company a has been presented ERTE including to part of the staff and, subsequently, is considered necessary that the ERTE affects to more hard-working/ace for circunstnacias related to the COVID-19, can the company to request the increase of the ERTE initially presented or he must present an ERTE new because of the rest of workers/ace?
It is not possible to increase the number of workers/affected ace in an ERTE already presented. For this reason, if at first it is not possible to determine the total number of affected and the way in which is going to go applying the ERTE, the company will have to present a second one ERTE.
What happens if the company was closed at the time of coming into force of the State of Emergency and I can not achieve that my workers sign that I have communicated them the presentation of the ERTE?
In that case will be enough the presentation of any document that it proves that the company has made that communication, although it is not signed the reception by workers as, for example, an email.
Are owed to include in the ERTE to the workers/ace that are in Temporary Disability?
Yes, because they will happen receivable the unemployment benefit when it finishes its temporary disability situation. This extreme should reflect in the relationship of hard-working people affected by the ERTE.
Dictated standards for the exceptional situation have not established no specificity for the ERTE with regard to workers that are already found in situation of Temporary Disability. Therefore, is not fitted out nothing extraordinary with regard to this situation. The worker in situation of Temporary Disability already has suspended its employment contract. So far this option is not fitted out, although we will have be pending if some regulation or development was produced on the situation of workers in Temporary Disability in the companies that they take refuge in the Dossier of Regulation Temporary of Employment. The company maintains the obligation of continuing with the deposit of the financial assistance in fee-paying regime delegate as a result of the compulsory collaboration in the management of the Social Security Institute (article 3.1.to of the Order of 25 November 1966), until the hospital admission.
Unemployment will be paid to all workers of the ERTE?
Yes, all the affected ones will be able to charge unemployment, although they have not quoted the minimum period necessary to it.
You can present an ERTE due to force majeure that it groups measures of contract and reduction in working hours suspension?
If, you can present an ERTE that it groups both measures.
I have to unsubscribe to the workers/ace of the company in the Social Security Institute?
During the ERTE is not owed to unsubscribe to the workers in the Social Security Institute, since they follow of registration, regardless of that, in accordance with it considered in the Royal Decree-Law 8/2020, of 17 March, of extraordinary urgent measures to address the economic impact and social of the COVID-19, the company can be disburdened of the payment of the contributions to the Social Security Institute.
Workers included in an ERTE, must request individually the unemployment benefit?
No. The company carries out a collective application of the unemployment benefit for everyone workers included in the ERTE using the model published on the website of the Public Service of State Employment (SEPE).
If a company presented an ERTE for production reasons at the start of the crisis and subsequently have been transformed in force majeure, can modify the ERTE?
Not, it has to desist of the ERTE presented and to present one new due to force majeure. From the official website of the Ministry it is recommended that the withdrawal is communicated via the General Record of the Central Administration.