In the coming days, boys and girls across the country will begin to return to classrooms after months of online classes. However, the rebound in the pandemic and the uncertainty about going back to school has caused many parents to wonder what rights they have as workers in case their child is infected or that, as a consequence of having a partner infected by the Covid-19, have to spend a few days of quarantine at home.
Since the beginning of the health crisis, the Executive has approved various legislative provisions aimed at protecting employees whose family situation was affected by the virus. Regulations that are added to the reforms that, in recent years, have been promoted with the aim of improving the personal and labor conciliation of workers. By virtue of this battery of legal measures, these are the options available to working parents who have dependent children of school age.
Faced with the anticipation that there is no continuity in the development of face-to-face classes, parents with an employment relationship may choose to request teleworking. This is allowed by the MeCuida Plan, included in article 6 of Decree-Law 8/2020. Said provision establishes that employees “who demonstrate care duties (…) will have the right to access the adaptation of their working day”, a concept within which “the provision of remote work” is included.
Asking the company to telecommute was an option that already existed in our legislation. The one baptized as a la carte day, introduced last year in article 34.8 of the Workers’ Statute (ET), grants staff the “right to request it.” However, the MeCuida Plan goes further and establishes the “right to access” to the adaptation of the working day, a prerogative that is “individual to each of the parents.”
Labor Minister Yolanda Díaz said last week that the Plan, which expires on September 22, will be extended. In any case, if it were to decline, employees would continue to be able to protect their telework request in the day to the letter.
Is the company obliged to accept teleworking?
Once the telework request has been made, is the company obliged to accept it? No. In the first place, it is necessary for the employee to prove that this need for conciliation or care. And secondly, the law requires that the request be “justified, reasonable and proportionate” in relation to “the organizational needs of the company.” In other words, if there are compelling organizational or productive reasons, the company may propose alternatives or, in the most extreme cases, deny it. In any case, the law requires both parties to negotiate. “Company and working person must do everything possible to reach an agreement”, the law establishes.
In case of lack of agreement between the company and the employee, there are two elements that run in favor of the worker’s option. The first is the experience already lived in many companies, where it has been possible to operate remotely with acceptable results. And the second is the post-covid legislation itself, which requires companies to prioritize teleworking.
In any case, if the negotiation does not yield results and the business refusal ends up in court, there are two circumstances that tend to tip the judicial balance in favor of the plaintiff: the lack of negotiation by the company and the failure to provide objective reasons, productive or organizational, to justify “no” to the request.
This happened recently to a company in Vigo, which saw how the Social Court number 6 of the city forced it to grant teleworking to an employee who had requested it. The judgment affirmed that the company had “breached” its obligation to assess the petition in a “founded” manner, nor had it made any effort to find another alternative. That is to say, the employer’s refusal must be accompanied by arguments and, where possible, by a counter offer.
Adaptation of the schedule or the day
Another option granted by the MeCuida Plan (and also provided for in the day to the letter) is the adaptation of the working day. And, as specified in the regulation itself, this option must be understood in a broad sense: from the distribution of work time, like any other aspect of working conditions, such as a shift change, schedule alteration, flexible hours or split or continuous working day.
Access to the time adjustment is also configured as an individual right of each of the parents. Of course, as with teleworking, the employee must prove the duties of care and his request be reasonable and proportionate to the needs of the company. And, likewise, the company is obliged to negotiate, offer alternatives and, in case of refusal, give objective arguments.
Reduction of working hours
Likewise, parents may request a special reduction in working hours with a proportional reduction in their salary. This must be communicated to the company at least 24 hours in advance. The special legislation of the Covid allows the reduction to reach 100% of the working day, maintaining all the guarantees and rights provided in the Workers’ Statute for ordinary reductions (articles 37.6 and 37.7). If 100% is requested, the regulations require that the request be “justified” and “reasonable and proportionate in view of the company’s situation.” The time specification when requesting a reduction in working hours corresponds to the employee.
The Minister of Education, Isabel Celaá, considered this option a few days ago for parents with a child who must stay home due to being infected or having a case in their classroom. An idea later parked by the Ministry of Labor that asserted that the templates were already protected with existing legal resources.
There is no doubt, as Jorge Sarazá, a partner at Ceca Magán, explains that the parents of a child positive for Covid-19 will have the right to sick leave. This is established by Criterion 2/2020 of the General Directorate of Social Security. The testo establishes that “the periods of preventive isolation that workers are subjected to as a result of the SARS-CoV-2 virus (Covid-19) will be considered as a situation of temporary disability derived from a common disease.” Therefore, during those days or weeks, the parents must receive the corresponding benefits.
Now, what happens to the parents of minors who have been in contact with the positive and who, consequently, must also keep quarantine? This case raises doubts because in many hospitals and health centers they are prescribing that the contacts of those who have shared space with a positive for coronavirus must also remain in isolation. Those cases, on the other hand, according to Sarazá, would not a priori be covered by sick leave, according to the criteria maintained by Social Security in recent months. However, the lawyer recognizes that if the parents have a medical report that recommends 14 days of isolation, the situation is conflictive because it could be understood that it fits the literal of the assumption contemplated in Criterion 2/2020.
Another option ruled out by Trabajo and that Celáa had raised was the creation of paid leave. The truth is that not going to the office to take care of the children is an excused absence, but said absence will not be paid or compensated with vacations (unless otherwise agreed).
The Workers’ Statute, in its article 37.3, also contemplates the possibility that the worker is absent to fulfill an “inexcusable public and personal duty”, such as attending a trial or an examination. In this case, the absence of the worker would be paid. But is caring for children who cannot attend class an assumption of “inexcusable duty”? The judges have not clearly opted for or against this possibility. In fact, there are contradictory resolutions. Thus, the Superior Court of Justice (TSJ) 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 personal duty. On the other hand, the TSJ of Galicia ruled in 2017 that this activity does not constitute it.
If the lack of agreement between the employer and the employee regarding the adaptation of the working day, reduction of the same or request for telework results in a lawsuit, this will be resolved through an urgent and preferential judicial procedure. The worker will have a period of 20 days from the date of claim counting from the date of the refusal of the company to his request. The hearing must be indicated within five days of the admission of the document and the sentence must be issued within the following three days. There will be no recourse against it unless the claimant has included a request for compensation for damages. In any case, as Jorge Sarazá, from Ceca Magán, emphasizes, employees must know that the request or exercise of conciliation rights cannot be detrimental to them. “The indemnity guarantee prevents any request under the MeCuida Plan or the Workers’ Statute from leading to retaliation by the employer, neither for requesting it nor for exercising it,” he highlights. If it occurs, the lawyer recommends, in any case, to initiate legal actions against the company.