The “reinforced containment” phase of the coronavirus announced yesterday by the Minister of Health, Salvador Illa, has been accompanied by some drastic measures to prevent the uncontrolled progress of the coronavirus in some territories. Thus, the Community of Madrid, La Rioja and the city of Vitoria and the town of Labastida have announced the temporary suspension of teaching activities in colleges and universities. This measure, which affects more than one and a half million students, has generated uneasiness and many doubts among workers who have no chance of leaving their children in the care of other people.
Although the Council of Ministers this morning can approve measures to promote flexibility in companies, the truth is that there is still nothing clear. However, our system provides for a series of options that workers can use to realize their right to the reconciliation of professional and family life. One of them is telecommuting, but it is not the only one. In addition, the collective agreement applicable in the company may grant additional rights or measures. Most of the solutions to the problem generated by the suspension of teaching classes will force employees and companies to negotiate.
This measure, which is included in article 34.8 of the Workers’ Statute (ET), may be the most satisfactory option for both parties. The worker does not see his salary reduced and the company continues to operate. However, it must be agreed by mutual agreement, and cannot be demanded by the workforce or by the business management unilaterally. However, if the company refuses to allow distance work, employees may invoke their right to adapt their work for an extraordinary reason (such as taking care of minors who cannot attend class). In this case, the refusal of the company must be justified.
Adaptation of the schedule
In the event that the company does not accept telecommuting, the employee may invoke his right to adapt the work day contemplated in the same article 38.4 of the Statute. The one known as a la carte day is planned to reconcile work and personal life, and, in this case, it would be an option to explore. As in the case of telecommuting, the measure must be negotiated with the company, but an unjustified refusal would grant the employee an extra reason when defending his right in court.
Working day reduction
Another alternative provided by law is the reduction in working hours, with the consequent proportional reduction in salary. The advantages of this option are that the worker can not only reduce working hours, but can also choose his schedule (right to specific time). This measure does not require a specific time scope, so employees could enjoy the reduction during the closure of schools and return to the previous day when they reopen.
The regulations require the worker to notify the employer fifteen days in advance, unless it is a case of force majeure (as the coronavirus could be considered). However, this option can only be used by employees under 12 years of age, as established in Article 37.6 of the ET.
Not going to work to take care of the children is an excused absence, but such absence would not be paid or could be compensated with vacations (unless otherwise agreed with the company). In the same way, the cases of quarantine or isolation in which the worker cannot go to his position would be treated, although Social Security could extend the consideration of temporary disability to these cases.
The Statute of Workers, in its article 37.3, also contemplates the possibility that the worker is absent for the fulfillment of an “inexcusable duty of a public and personal nature”, such as going to a trial or an examination. In that case, the worker’s absence would be paid. But is caring for children who cannot attend class an assumption of “inexcusable duty”?
The courts have not decided clearly for or against this possibility. Thus, for example, the Superior Court of Justice of Castilla y León ruled in 2013 that accompanying a child to the doctor is a parental obligation that can be equated with the fulfillment of an inexcusable duty of a personal nature. On the other hand, the TSJ of Galicia failed in 2017 that this activity does not constitute an inexcusable duty.
The company cannot force its employees to take vacation days to face this crisis. This is established in Article 38.2 of the ET, which requires that the period of vacation enjoyment be established by mutual agreement between employer and worker, “in accordance with the provisions, where appropriate, in collective agreements.” That is, vacation planning must be negotiated in any case, so the unilateral decision of the employer would not be a solution.
The Spanish Agency for Data Protection has already answered this question in reference to Influenza A. In its report, it denied the possibility. If there is no consent of the affected persons, the prevention services should not provide more information than the conclusions derived from the acknowledgments made in relation to the worker’s ability to perform the job or the need to introduce or improve protection and prevention measures, so that they can correctly perform their functions in preventive matters (article 22.4 of the Occupational Risk Prevention Law).