Is there temporary disability due to Coronavirus for employees who may be affected and who, through the application of existing preventive protocols, are subjected to the corresponding isolation?
This is the question that the Social Security has had to resolve. There is a legal loophole: THEY ARE NOT AFFECTED BY AN ACCIDENT OR ILLNESS, but they must be monitored and receive the corresponding health care, so they are unable to work.
Initially, the Directorate-General adopted a criterion (the 2/2020) considering that this is a situation of temporary incapacity due to common illness.
However, in the BOE (Official State Gazette) of 11th March, RD-Law 6/2020 was published, which article 5 exceptionally declares periods of isolation or infection of employees as a result of the COVID-19 virus to be a situation assimilated to an accident at work. On this occasion, and not based on specific technical criteria but of a Royal Decree-Law, the consideration of the IT economic benefit was changed to assimilate it to an accident at work:
- The benefit is paid to employees or self-employed workers who are registered with any of the social security systems on the date of the accident.
- A situation assimilated to an accident at work is considered exceptional.
- It affects both the periods of isolation and of contagion of employees.
- The duration of the benefit will be determined by the amount of time the employee is absent due to isolation and the corresponding discharge.
- The date of the causal event will be the day on which the isolation or illness of the employee is agreed.
The article 11 of RDL 7/2020, in line with the provisions of RDL 6/2020 for employees covered by the general regime, also extends the same treatment to staff covered by the administrative mutual insurance scheme: periods of isolation or infection as a result of the COVID-19 are considered to be equivalent to occupation accidents for the purposes of the economic benefit for temporary disability:
- The duration of this exceptional benefit will be determined by the part of leave due to isolation and the corresponding registration.
- The member who is registered in the corresponding Special Social Security Regime on the date of the event causing the accident may be entitled to this benefit.
- The date of the casual event will be that on which the isolation or illness of the member is agreed, without prejudice to the fact that the cancellation report will be issued after this date.
What is the established protocol if there is a suspicion of possible COVID-19 infection in the workplace?
According to the latest recommendations from authorities, in order to be consider a temporary disability due to Coronavirus, it will be suspected if the employee has respiratory symptoms (fever, cough or difficulty breathing) and, in addition:
- has been in close contact, i.e., in the same location and within 2 meters of an infected person while that person was experiencing symptoms, with a patient diagnosed with COVID-19; or
- has traveled to a high-risk area in the past 14 days (i.e., northern Italy, China, Japan, Singapore, South Korea, and Iran).
If an employee has symptoms compatible with the disease while in the workplace and meets either of the above conditions, the procedure to follow would be as follows:
- The person with symptoms should minimize his or her contact with other employees and go to a specifically designated room where he or she is alone, if possible. If this is not possible, they should respect a minimum distance of 2 meters from other people, ideally using physical barriers such as walls or partitions. If masks are available, the employee will wear one.
- In addition, it will be necessary to call 112 (number of the Spanish emergency services) or the telephone number that the autonomous community in question has provided for the management of COVID-19.
It is also likely that the employee will be declared in preventive isolation by the competent health authorities. In such a case, the said authorities could declare the employee on temporary disability leave, which, according to Royal Decree Law 6/2020 of 10 March, will exceptionally be considered an accident at work.
In accordance with the recommendations issued by the relevant authorities, the activity of the companies will continue under the same terms, although protective measures must be adopted to protect the health and safety of employees in the workplace as described above (i.e. through recommendations and protocols).
The health authorities will report the results of the tests performed and confirm whether the case is positive for COVID-19. When a positive result is confirmed, those who have had contact with the employee should identify themselves and proceed as set out in the following section, in accordance with directions issued by public health authorities.
In any case, the company must instruct the workplace cleaning services to carry out a thorough cleaning of the area(s) where the person suspected of having COVID-19 has been, with special emphasis on surfaces and areas of use where hand contact is frequent.
What is the established protocol if there has been contact with COVID-19 in the workplace?
The latest recommendations also classify contacts with a possible positive among close and casual contacts to determine treatment of possible infection. In any case, there is no specific restriction on work activities for close or casual contacts, without prejudice to the risk prevention measures considered necessary.
Close contacts are understood to be those people who have been in the same place and within 2 meters of a confirmed case while that person had symptoms.
Close contacts should be informed and active monitoring should be initiated, following the protocols designed for this purpose by the health authorities. It is recommended that social activities and non-essential travel should be limited, with information on respiratory hygiene measures and appropriate hand washing precautions.
In accordance with the recommendations, the decision to minimize possible contact with others through distance working, or even to cease work activities, should be taken on a case-by-case basis following an individual risk assessment by the external prevention service.
Casual contact is defined as employees who have been in the same enclosed space with a case while it was symptomatic, but who do not meet the criteria for close contact.
In accordance with the recommendations made, in this case an active search for these people will not be carried out, but rather passive surveillance is recommended (they will be attentive to the appearance of respiratory symptoms and, if necessary, will inform public health in the manner established in each Autonomous Community.
However, if the symptoms develop within 14 days of contact, the person should immediately isolate themselves in their home and contact 112 or the telephone number provided by the corresponding Autonomous Community.
What happens if there is a serious and imminent risk of COVID-19 infection in the workplace?
In addition to the above recommendations and protocols, in accordance with general prevention measures for health and safety, if there is an imminent and serious risk of COVID-19 infection in the workplace, the company must immediately:
- Call the competent authorities for instructions, as well as the corresponding prevention service;
- Inform employees of the risk and the measures taken by the company as a result of this infection;
- Take the necessary steps to stop the activity and, if necessary, leave the workplace with immediate effect (to work remotely, if possible), and
- Document all information relating to internal protocols and health and safety measures adopted by the company in coordination with the prevention service of others.
Interruptions by employees or their representatives
There is no specific right for employees to interrupt their work in this type of situation.
However, employees (or, where appropriate, workers’ representatives) may request that their work be interrupted if the provision of services in the workplace involves a serious and imminent risk of COVID-19 infection (in accordance with certain legal provisions of the LPRL).
However, as far as the immediacy of the risk is concerned, the mere assumption or social alarm generated by COVID-19, or the simple fact of the dissemination of COVID-19 at national level, is not sufficient to justify that the requirements for interrupting the activity have been met. For this purpose, an impartial assessment based solely on objective facts should be prepared.
In this respect, if the company has taken the necessary preventive measures and, if possible, alternative measures such as home-working or shift work, this type of interruption would be unlikely.
Also, in general, employees may be entitled to request other employment measures as will be developed in another section, in accordance with Spanish law, in order to ensure the reconciliation of work and family life (e.g. adaptation of working hours, working from home, reduction of working hours, paid leave to fulfil an inexcusable public and personal duty, etc.).
Disruption of business activity by the Labor Authorities / Inspection
The Labor Inspectorate could also stop the activity in case of serious and imminent risks to the safety and health of workers (reserved for very extreme cases).
If you are having doubts about your future or your company’s due to the recent Coronavirus outbreak, Lexidy can help you mitigate all your doubts with our solution oriented services: COVID-19 legal advise in Spain.