Doubts and job responses during the coronavirus season
As I grew up with television, the phrase “we were pending what they told us about the transistor”When the elders told us how they lived through certain historical events. Old and pretty.
Now we receive the information through multiple means (radio, internet, messaging applications, TV …). And this is causing the information to be very diverse and sometimes confusing.
To make matters worse, lawyers like to give accurate information but this time it is difficult to give it because everything seems to change and what comes to us are rumors, drafts or intuitions.
Even at the risk that these letters expire in a matter of hours, when a decree of social measures is approved, we are going to write about a series of questions that we are being asked in relation to labor issues. We do it at 5:00 pm on Saturday, March 14 and we promise to update it.
Can I be forced to take a vacation?
It would not be legal. Article 38.2 of the Status of workers states that “the period or periods of their enjoyment will be established by mutual agreement between the employer and the worker, in accordance with the provisions of the collective agreements on annual vacation planning” In other words, it must be agreed between the parties, not imposed.
Furthermore, as workers we are entitled to two months’ notice.
Likewise, the same article adds that “In case of disagreement between the parties, the competent jurisdiction will set the date for the corresponding enjoyment and its decision will be irrevocable. The proceedings shall be summary and preferred“
In other words, if the employer says yes or yes you have to take your vacation (or part of it) on these dates, you can sue him before the social jurisdiction, which will decide if it is a fair decision or not. Taking into account that most of us are confined to our homes, in quarantine, without the possibility of going out to enjoy our free time as we please, the logical thing would be for the judge on duty to determine that the decision to impose the holidays in the middle of the pandemic It is adjusted to Law. Especially when the courts themselves have decided to suspend their non-urgent activity.
Of course, it is important to know that we have a duty to obey the employer even if we demand. Then the judge will give us the reason if the employer has given an illegal order. But it is important to obey it until then because if we disobey they could dismiss us accordingly.
Can I impose telework in front of my boss? Can the company force me to telecommute?
The leaked draft for special measures by the Government during the State of Alarm appears to say the following:
Article 8. Containment measures in the workplace
Employers, both public and private, will be obliged to provide measures that allow for the employment or civil service of employees by non-contact means whenever possible.
If the text is confirmed, what it appears to be is that it is the employer who has the obligation to provide. The worker may choose to do so or not.
Until now, any modification of the normal working conditions, such as going from face-to-face work to telework, must be agreed by the employer and the worker (or, where appropriate, with the workers’ representatives). It cannot be imposed by either party. And, by the way, working at home all pre-existing labor rights are maintained regarding hours, rest, time control, etc.
With this wording of the RD (as long as it is confirmed) the above change and it becomes an obligation of the employer to offer telework whenever possible.
Can I refuse to go to my job if the company forces me?
In principle, no, unless it is considered that there is an imminent risk to the health of workers. Article 21.2 of the Law of prevention of labor risks states that “the worker shall have the right to interrupt his activity and leave the workplace, if necessary, when he considers that said activity involves a serious and imminent risk to his life or health”
In the case of a global pandemic like the current one, it could be argued whether forcing workers to go to their jobs puts them at risk, no. If someone thinks of disobeying their bosses and refusing to go to their job, we recommend sending some type of communication to the company (ideally it would be a burofax, but the Post offices are currently closed, given the state of declared alarm) making it known the businessman who is not going to go to the workplace for fear of suffering a serious risk to his health and who makes himself available to work from home. If the businessman takes some form of retaliation (dismissal, imposition of sanction, discounting the day of the salary, etc.) we recommend sue the company and that a social judge decide if the absence was justified or not.
Should the company provide me with the necessary equipment to telework?
In principle, yes. You may well not have a computer, or the necessary equipment to work, at home. However, by virtue of the agreement reached between the worker (s) and the company, it is possible that they may make available to the employer some type of material or personal equipment during this stage. For example, if you have a personal laptop you can offer your boss to use it to work from home and thus facilitate the agreement.
Can an ERTE take place? What would the procedure be like?
An ERTE is a temporary employment regulation file. It’s a cousin of the EREs. As family members, they share a procedure that is highly regulated and has a certain complexity that we will not discuss in detail here. What is important is knowing that they require negotiation and some complicated requirements.
Faced with the extraordinary situation that is taking place, unions and employers have met. They have requested that these requirements be relaxed to the government and it is foreseeable that this will be done. At the time this occurs, we will inform you because it will be very important, since it may be one of the majority solutions that employers choose.
What to do if I get fired these days?
It seems that the terms to challenge the dismissal are going to be suspended. These are 20 days (not counting holidays, Saturdays and Sundays).
What we recommend whether they are suspended or not is that they contact an attorney to inform them of the situation and prepare the lawsuit.
By Juan Rubiño