What rights do ERTE workers have in times of the coronavirus?

The declaration of the state of alarm in Spain due to the coronavirus crisis, which has already claimed the lives of more than 630 people in our country, has caused many companies to close for the duration of the crisis. Some of them have resorted to the Employment Regulation Files (ERTEs) among their workers in order to save the accounts during the stoppage of their activities.

Seat, Renault, Burger King or Pikolín are some of the companies that have already announced the presentation of this type of employment regulatory files, which will mean that many workers will find themselves in a legal situation of unemployment.

Given this circumstance, the Prime Minister announced this Tuesday new economic measures. Among them are the mobilization of 200,000 million euros, aid to families or the self-employed, the streamlining of ERTE or unemployment payment without counting as spent.

The Public Employment Service has not stopped receiving, electronically, ERTE requests. Only in the state offices and those of 10 autonomies, there are almost 3,000. According to the Government, the affected workers will receive an average of 860 euros. And it calls for responsibility from large companies.

What is the difference between an ERTE and an ERE?

An ERTE is a temporary suspension of contracts, that is, a stoppage in the work activity of the company for a certain time. The relationship between the worker and the company is suspended, although there is also the possibility of a reduction in the working day. In addition, the law does not establish a maximum duration, but the suspension must be linked to a justified cause. In this case, while the state of alarm lasts, due to the coronavirus.

On the other hand, in the ERE there is an extinction of the relationship between the worker and the company, that is, a dismissal.

In both cases, the suspensions do not require a minimum number of affected workers.

Can my company take advantage of an ERTE legally?

In exceptional cases such as the current coronavirus pandemic in which a state of alarm has been declared, businesses whose services are not considered essential, they have the obligation to suspend their work activity and may resort to a temporary termination of the workers' contract, which is not the same as a dismissal.

To alleviate the economic impact that the virus is having on the economy, the Government has announced a series of measures, in turn agreed upon with the workers' unions, among which it has promised to expedite the ERTE procedures.

According to the Workers' Statute, an ERTE can be justified for the same reasons as a collective dismissal or due to “force majeure” such as a pandemic.

After the declaration of the state of alarm in Spain, there are companies that have been forced to carry out an ERTE due to "force majeure". In addition, other companies whose commercial activity depends on those that have closed have also seen a decrease in the development of their work.

Fe Quiñones Martín, a lawyer associated with the labor department of Javaloyes Legal, explains in statements to RTVE.es that an ERTE is carried out "with the aim of avoiding layoffs", but that nevertheless, "there are companies that suffer the Same problem because their customers close. For example, the company that supplies Burger King's machines has to close due to inactivity in the chain's restaurants."

In that case, Quiñones points out, "it is unknown if we would be facing an ERTE due to "force majeure" or if its workers would face an ERTE without the benefit of the conditions announced by the Government."

If the company includes me in the ERTE, does it have to cancel me from Social Security?

In the event that the company includes the workers in an ERTE due to suspension of the activity, no you have to cancel it in the Social Security Regime. The leave occurs only in the event that the employment relationship between the company and the employee ends, that is, when there is a dismissal.

Similarly, in cases in which there is a reduction in the working day authorized by an employment regulation procedure, the company continues to be obliged to keep the worker registered with Social Security.

How does an ERTE affect me while on leave or incapacity for work?

In the event that the worker affected by an ERTE or a reduction in working hours is in a situation of incapacity for work, or on maternity or paternity leave, the measures adopted by the company will not affect you until you submit your medical discharge or the period of maternity or paternity leave ends.

If during the term of the employment regulation process a situation of temporary disability occurs with common contingencies, the State Public Service (SEPE), by delegation of the National Social Security Institute (INSS), will pay the worker the benefit for temporary disability. If this assumption occurs, the person hired by the company will receive an amount equal to the unemployment benefit, with the corresponding consumption of benefit days.

In addition, in a situation of maternity or paternity, the worker will be suspended from paying the unemployment benefit and will begin to collect the corresponding benefit for said leave, which will be directly managed by the INSS. After the termination of said leave, the employee will again receive the unemployment benefit.

Can I work in another company during the ERTE?

During the time in which the worker has his contract suspended due to a temporary employment regulation file, he can carry out another work activity both as an employee like on your own.

In this case, you must notify the State Public Employment Service, which must be aware of the placements you have while receiving the unemployment benefit, in order to suspend said benefit.

In the event that the new activity to be carried out is only part-time, you may request the compatibility of the benefit with the part-time contract, thus subtracting the proportional part of the time you work.

Does personal income tax withholding apply to me while the ERTE lasts?

Personal Income Tax (IRPF) withholding is applied to unemployment benefits. Even so, while the person affected is receiving the unemployment benefit, they can request that the IRPF be withheld or that a higher withholding percentage be applied in their case.

Can they force me to take vacations?

Many companies have used the option of forcing their workers to take vacations during the state of alarm so as not to apply ERTEs to their employees due to the unemployment activity. This is the case of some companies that do not have the possibility of teleworking due to the activity they carry out or it has not yet been implemented.

However, forcing workers to take 'forced vacations' "is illegal", according to the lawyer, who explains that in the event that the worker finds himself in this situation, he can sue the company once the term is over. state of alarm for coronavirus. The employee will have 20 business days to file the claim once activity resumes in the courts.

Will I be unemployed in the event that I am affected by an ERTE?

Workers affected by an ERTE are legally unemployed. Therefore, if they meet the requirements, they are entitled to unemployment benefit, which during the state of alarm must be requested only electronically due to the closure of physical offices.

In relation to the measures announced by Sánchez, workers who are in this situation will be able to have access to unemployment payment for the time that their company maintains the ERTE, without those days counting as spent.

In the event that a worker affected by an ERTE does not comply with the 360 ​​days of contributions, due to the extraordinary measures that the Government has announced this Tuesday, they could benefit from unemployment benefits for the duration of the state of unemployment alarm, regardless of the number of days that have quoted. Before the approval of this measure, the worker was only entitled to unemployment benefits if he had contributed 360 days in the last 6 years.

Regarding the amount that is received when you are in an ERTE situation, it is 70% of the regulatory base for the first six months and 50% thereafter.

How is the unemployment derived from an ERTE consumed?

In the event that a reduction in the worker's working day has been applied, which, therefore, gives rise to partial unemployment, the consumption of the unemployment benefit would be consumed by hours and not by days. Although due to the regulations approved this Tuesday by the Government, the hours of the unemployment benefit will not be deducted and the worker will start from scratch.

In the case of total unemployment, due to the cessation of business activity while the state of alarm lasts, the consumption of the days would not be the same as in the previous case. Due to the new measures announced by the Government, no days that the worker has accumulated will be deducted, as in the previous case.

"In other words, once the state of alarm is over, the counter will be reset to zero and the days that the worker has been collecting the unemployment benefit will not be modified," says Quiñones.

Do I have to renew the job application while the ERTE lasts?

Under normal conditions, the worker would be obliged to renew the job application. However, the Ministry of Labor and Social Economy has announced through its official Twitter account that, as it is an exceptional case in a state of alarm and since the physical offices will be closed, job applications will be renewed automatically. .

In addition, due to the state of alarm situation and the suspension of the operation of the physical offices, the company will be the one that provides the pertinent data to the worker for the collection of the unemployment benefit.