Many clients ask us whether or not they can return to work and whether or not they can require their employees to go to work.
In truth, the answer is not “so easy”. Since the end of the “compulsory leave” a few days ago, logic dictates that we should refer to RDL 463/2020, which declares a state of alarm. In it we have the first list of who cannot open:
- Article 9. Educational activities, not centres.
- Article 10. The opening to the public of “retail premises and establishments, with the exception of retail commercial establishments selling food, beverages, basic necessities, pharmaceutical, medical, optical and orthopaedic products, hygienic products, hairdressing, press and stationery, automotive fuel, tobacconists, technological and telecommunications equipment, pet food, internet, telephone or mail order, dry cleaners and laundries. Any other activity or establishment which, in the opinion of the competent authority, may pose a risk of contagion is suspended” as well as “museums, archives, libraries, monuments, as well as premises and establishments where public shows, sports and leisure activities indicated in the annex to this royal decree are held”. Be careful! You have to see what this annex says, it is quite extensive so we do not reproduce it, you can consult it here. Then, the “hotel and catering activities are suspended, being able to provide exclusively home delivery services” and “festivals, parades and popular festivities”.
- If your activity has already been mentioned, you will have to comply with what the regulation says: suspension of activities or opening to the public, depending on the case.
If we have not mentioned your activity… you may be able to resume activities unless there is a Ministerial Order prohibiting it. There are dozens of Orders, so summarising them here would take us the whole confinement, it is preferable to consult us directly, your guild or your Town Hall. We say Town Hall because who may or may not open varies by municipality!
Having clarified “Can we return to work?” the employer has an instant doubt: Can I require the workers to return? Which brings us to RDL 8/2020, in a nutshell:
Article 5 states “organisational systems shall be established that allow activity to be maintained by alternative mechanisms, particularly by means of remote working, with the company having to adopt the appropriate measures if this is technically and reasonably possible and if the necessary adaptation effort is proportionate. These alternative measures, in particular teleworking, must be given priority over temporary cessation or reduction of activity” . Article 6 then indicates a series of circumstances under which the worker may request an adaptation of working hours and/or reduction of working hours, with the proportionally applicable reduction in salary. If the company, due to its nature, cannot establish remote working systems (factories, logistics, etc.), it may demand the resumption of activities and it will be the worker who, if he/she deems it appropriate and meets the requirements, will avail himself/herself of the measures of Article 6.
But! The company is responsible for ensuring safety, including health and safety at work. For this reason, measures must be taken to reduce the risk of contagion and to allow safe working conditions: hygiene, distancing, …
It may happen that, even if you are able to work, your staff or essential personnel are on sick leave (COVID19), in which case you may consider the possibility of applying for a temporary lay-off.
Summary: there is a “general feeling” that the country is at a standstill because the government orders it. But the reality is more complex. Many companies can resume their activities if they wish to do so.
As always, we remain at your disposal
After repeated requests from industry professionals, the government has relented and the tax filing that was due now, on 20 April, has been postponed.
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