The different phases in the easing of lockdown include going back to work and with this, the need to strike a work/life balance. However, this time there is an additional problem – no school – and those that tend to take care of the children over the holidays (the grandparents) are some of the people who are most at risk. It is not advisable for them to be in contact with children, since science still doesn’t know for sure the extent to which children may spread the virus.
Royal Decree-Law 8/2020 deals with this problem in its provisions on adapting timetables and reducing working hours. Specifically, article 6 establishes the right to adapt and reduce working hours for purposes of legal guardianship which can even reach 100% of working hours, just like an unpaid leave of absence.
The first requirement is to evidence duties of care with respect to relatives up to the second degree of consanguinity, who for age, illness or disability reasons, need direct care as a direct consequence of COVID-19. However, it introduces an essential element to address the issue, namely that exceptional circumstances will be deemed to exist when there are decisions adopted by government authorities relating to the pandemic that entail the closure of educational establishments or establishments of any other nature that provide care or attend to the person requiring them.
This right to adapt timetables and reduce working hours introduces the spirit of the latest legislative reforms on equality, since it expressly provides for the principle of shared responsibility. It is established as an individual right of each of the parents or caregivers which should avoid the perpetuation of roles, and must be justified, reasonable and proportionate in relation to the situation of the company.
It is precisely this last requirement that determines that it is not an absolute right, that it can be tempered and controlled by the courts should any disputes arise. Consequently, any legal disputes should be processed as a proceeding to review reductions in working hours, material modifications to working conditions, etc. (article 139 of the Labor Jurisdiction Law).
As with reductions in working hours, it is up to the workers to determine the exercise of this right, always subject to reasonable and proportionate standards, in view of both the worker’s personal needs as well as the organizational needs of the company. Priority must always be given to solving any possible discrepancies through an agreement.
The decree-law also establishes many alternatives to exercise this right, from working different shifts and altering timetables, to a total reduction in working hours, including a change in duties, provided that the services in question can be provided at the company in this way.
As to the protection of workers, it provides that when a reduction in working hours is requested, it is subject to the rules on working hours reductions for reasons of legal guardianship and care for relatives, with a few new features: reduction of up to 100% in working hours can be requested (with the proportional reduction in salary); it may be notified to the company only 24 hours in advance; the relative that requires the care may not perform paid activity. In addition, where the worker is already taking reduced working hours or enjoying another work/life balance measure of those established in article 37 of the Workers’ Statute, he/she may temporarily waive this right in order to take advantage of the new provisions or ask for it to be adapted to the requirements of the new measures.
Finally, regarding the duration of this right, it should be underscored that although it was initially proposed that it could be enjoyed up until one month after the state of emergency had ended, this leave may now be requested for up to three months after the end of the state of emergency.
Garrigues Employment & Labor Law Department
