Some of the measures taken by public authorities to help curb the spread of coronavirus have had a major impact on the workplace and raise questions about how the measures should best be applied in employment relationships.
In the past few days, many parents have been affected by one of the government’s measures to curb the spread of the coronavirus (COVID-19), namely the temporary cancellation of classes in certain parts of the country.
This measure has left many parents with a lot of questions, particularly those that cannot care for their children at home because they still have to go to work, do not have anyone to leave the child with, or prefer not to leave the child with someone else to avoid health risks.
There are a number of different opinions circulating about the rights employees have when dealing with school closures and how employers should respond to employee requests in this regard.
In looking at this situation, the first legal source we must turn to is the collective labor agreement governing the particular employer/employee relationship, to determine whether it contains any provisions entitling the worker to leave for this reason. If not, it is important to note that the Workers’ Statute does not specifically recognize any rights or leave in this regard, and therefore we must look at the specific cases already analyzed by the labor courts.
For example, on two different occasions, the Galicia High Court had the opportunity to rule on whether a worker leaving his or her post to deal with an extraordinary childcare need constitutes a justified absence on a par with an imperative public duty and, therefore, whether the worker would be entitled to the paid leave established in article 37.3 of the Workers’ Statute.
In one of these cases, on June 17, 2011, the Galicia High Court issued a judgment holding that a parent’s absence from the workplace to take their daughter, who was in frail health and with a disability, to an important medical treatment in another province was a justified absence. In this case, the judgment considered that this need was an imperative public duty, noting that “parents’ obligation to take care of their minor children is an unavoidable obligation with clear public overtones”, thereby recognizing the right to the aforementioned paid leave.
However, in a later judgment of July 14, 2017, the same court understood that a parent who had to leave the workplace to take their child to the doctor – even though the appointment was particularly important – was not a case “that the law considers to be an imperative public duty, but rather a statutory obligation imposed on parents by the Civil Code and performed in the context of private relationships”.
In short, there is no legal precedent that expressly establishes parents’ right to take paid leave to care for their children when schools are temporarily suspended, nor is there any case law in that regard or legal doctrine that recognizes this as a settled matter.
In this panorama, and without prejudice to employers and employees negotiating and agreeing to temporary measures to allow working parents to care for their children while classes are suspended (telework, vacation, paid leave, unpaid leave, changes in timetables, extended leave of absence, suspension of contracts, etc.), we must undeniably look at the specific measures and responses of the competent bodies to resolve a situation that, as we have seen in the past few days, has sparked a great deal of confusion and, more than anything, had a major impact on the workplace.
Garrigues Employment & Labor Law Department
