The sudden outbreak of the health crisis caused by COVID-19 has led employers and employees to turn to teleworking in response to the need for social distancing. However, having overcome this first phase, the following measures can be considered and adopted from a labor standpoint to tackle the difficulties raised by the economic standstill and the decline in activity.

According to some studies, in 2018 only an average of 4.3% of workers in Spain worked under a teleworking or remote working arrangement, that is, where a worker provides services to their employer from their own home or a place other than that agreed by the parties in the employment contract or additional document (article 13 of the Workers’ Statute).

In 2018, the number of teleworkers in Spain was similar to the low levels observed in other countries such as the Czech Republic, Poland or the UK. This figure rose in late 2019, as a total of 7.9% of workers in Spain began teleworking during the last quarter of the year.

And then came March 2020. A month in which social media was suddenly filled with photos of workers who, perhaps taken by surprise by a new way of working they had never tried and since their job allowed it, were working from home, contributing towards keeping the worst health crisis in recent history under control, while their working hours and salary remained unaffected.

The days go by and workers continue to telework and stay at home, but what happens when there is no more work that can be carried out remotely? In other words, what can companies do when there is insufficient workload to enable their workers to continue working from home?

Other measures

If teleworking options have been exhausted, or if the workload has simply fallen so much as to make it impossible to continue providing services at the same rate, a range of options opens up, to be analyzed by each company depending on their industry, activity, the number of workers on the payroll and, of course, the company’s interests. Naturally, temporary layoffs (ERTEs) can be adopted. These can take the form of the suspension of contracts for full days or a reduction in working hours in cases where services can continue to be provided during some of the daily, weekly, monthly or annual working time. This measure implies a reduction in activity but also affects salaries, since workers receive the corresponding unemployment benefit, in whole or in part.

But other options exist. Collectively, introducing flexible working hours may be one option: working fewer hours when there is less work, in order to recover this time and work more when activity returns to normal, without this affecting workers’ salaries. All of this, naturally, respecting the rules provided for in the applicable collective labor agreement or, secondarily, in the applicable legislation. This solution is known in law as irregular distribution of working hours (article 34.2 of the Workers’ Statute) or, in layman’s terms, as a bank of hours (bolsa de horas).

Measures can also be applied at individual level, by reaching agreements with workers regarding flexibility for example, which would equate to a kind of recoverable paid leave of the type proposed by the Government in its Royal Decree-Law 10/2020, of March 29, which was applied to many workers until April 9, with no change in the worker’s habitual salary as a result of applying this type of leave.

There is also the option (which, in principle, cannot be imposed by the company) of changing the dates when vacation can be taken, bearing in mind that, as the President of the European Commission has encouraged people not to book summer holidays, it may be reasonable for employers and workers to agree on taking vacation now, which would be a good solution to avoid any impact on workers’ salaries.

Lastly, there are also the typical options that would affect workers’ salaries, such as, for example, taking of agreed unpaid leave or agreements to reduce working hours in cases where the worker may also need to do so to for personal or family reasons.

These solutions may help employers to withstand the drop in work caused by the current crisis and may help workers cope with the difficult economic times we are facing and will continue to face in the coming months.

All of the above with a view to ensuring that, with effort on both sides (employers and employees), we can get through the now famous #stayathome period at all levels and with the minimum possible impact.

Vanessa Marqués Soro

Garrigues Labor and Employment Law Department