The outbreak of Novel Coronavirus (COVID-19) has sparked fears of a worldwide pandemic. Based on the World Health Organization’s declaration that this is a public health emergency of international concern, the Spanish Government raised the risk to "moderate", though in some specific areas the risk may be considered as "high". Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
At time of writing there are no specific mandatory obligations for employers in respect of COVID-19. However, on 4 March 2020, the Spanish Ministry for Employment published a practical guide in relation to implications of COVID-19. This guide does not establish specific obligations in relation to COVID-19, but includes recommendations based on mandatory regulations regarding the prevention of occupational hazards and Spanish law.
Moreover, according to said guide, given an emergency situation (involving 'serious and imminent risk') companies may adopt or may be affected by the adoption of specific measures such as (i) stoppage of the activity by decision of the company, (ii) stoppage of the activity by decision of the employees, (iii) recommendations for preventive measures, (iv) the implementation of teleworking as a temporary organizational measure, and (v) the total or partial suspension of the activity, either by decision of the Health Authorities or indirectly due to the effects of COVID-19, due to economic, technical, organizational or productive causes or derived from force majeure. Unless or until COVID-19 regulations come into force, employers should ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like COVID-19spreading. Such advice may include:
- Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
- Put used tissues in the bin immediately
- Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
- Try to avoid close contact with people who are unwell
We further recommend notifying employees where they can access more information if they are concerned. Detailed information on COVID-19's recommendations and information about the virus may be found on the Spanish Ministry for Health's website or on the Regional Health Departments' websites.
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy and employment. Any such data must also be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, varies from country to country.
In Spain, the situation regarding privacy is not clear since the Supervisory Authorities have not published any guidance on this topic. Asking employees to confirm that they have not (i) visited those countries considered "red zones" and (ii) been in contact with anyone that has the virus, could be based on the legitimate interests pursued by companies, provided that GDPR principles are observed, including:
- Keeping the data obtained for a limited period of time (storage limitation);
- Minimizing the collection of data to the name and surname of the specific employee, and the country where they have been in the last month, and/or if they have been in contact with someone infected;
- Allowing access to a limited number of people; and
- Protecting the data with adequate security measures.
On the other hand, asking for a confirmation as to whether employees have the virus would involve the processing of special categories of personal data, requiring an additional lawful basis. In such a case, the information needs to be provided on a voluntary basis. As such, employers should seek explicit and voluntary consent of the employee, but must offer a real choice to employees as consent must be freely given.
If a law is passed requiring employers to identify employees who may be infected, consent would not be necessary. Currently, there is no legal obligation that allows companies to ask employees for a confirmation of whether they have the virus. Indeed, the status of the virus in Spain as at the time of writing is not of an emergency that could act as basis to circumvent the need for consent on the basis that health and safety provisions will prevail. Finally, it would also be necessary to put in place an information clause explaining any processing of data and the applicable lawful basis.
Based on this, for Spanish employers it would be possible for employees to declare that they have not been in any of the "hot" geographical areas or to the best of their knowledge that they have not been close to anyone infected by COVID-19. However, asking the employee to declare if they have the virus would be a breach of data protection regulations.
The position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.
What should employers do if an employee is absent or infected?
Infected employees or employees who have been exposed to COVID-19
If any employee has been exposed to or infected by COVID-19, companies must immediately inform the Spanish competent authorities, who will implement the protocols provided for this situation, such as isolation of the workplace, contact those persons related to the affected person, and so on. Competent authorities will also inform the company how to proceed.
In any case, companies must inform those employees/customers/providers that have been in direct contact with the infected employee or with the employee who has been exposed to COVID-19. Spanish regulations establish that in the event that there is a serious and imminent risk at work, the Company is obliged to inform all employees about the existence of said risk. In our view, a communication via e-mail would be sufficient.
Any time that employees are unable to render services due to an absence (e.g. quarantine) or infection will be taken as sick leave. During sick leave employees are not entitled to receive their salary for the first three days, unless the CBA provides otherwise. As from the 4th day, subsidy payments will be shared between the Social Security system and the Company (employees are entitled to a maximum sick leave of 18 months).
Potentially Infected Employees
In the event that the company becomes aware that an employee has been in direct contact with a person infected by COVID-19, the employee should be asked to undergo a voluntary medical examination. However, the company cannot force the employee to be medically examined unless there is a serious and imminent contagion risk for the rest of the workforce, which is difficult to prove.
In addition, the potentially infected employee may be recommended to provide services from their home (i.e. telework) and monitor their health, in order to avoid contagion in the company's workforce. The company can also offer telework to all staff if it wishes. If an employee agrees, a remote working agreement should be entered into before they commence teleworking.
Refusals to work or travel
The company can use its management power to force employees to work and render services in person at the workplace. This order has a presumption of legality, so in the beginning the employees would have to comply and, if appropriate, subsequently make a claim.
The risk of this approach is that, if employees consider that the performance of their duties carries a serious and imminent risk to their lives or their health, they can challenge the employer's decision before the social jurisdiction and claim compensation for damages (based on the provisions of the Law on Prevention of Occupational Risks). The Courts will assess the existence of a "serious and imminent" occupational risk after analysing whether the following three requirements concur simultaneously: certainty that damage will take place, severity of damage and immediacy of the risk situation.
Moreover, if rendering services at the company's premises involves a serious and imminent risk of infection by COVID-19, the employees can stop their activity and leave the workplace. Likewise, the employees' representatives may agree the interruption of the activity. In that case, the company cannot retaliate against the employees.
We further note that, in the event that the Government decides to close schools and employees demonstrate that they must take care of their children – thus preventing them working – Spanish case law considers that the employer is not obliged to pay the salaries during such an absence because the cause of the absence is not attributable to the employee.
What are employers' obligations where offices are partially or fully closed?
At the time or writing, only some companies have decided to close their offices in Spain in order to prevent the virus from spreading amongst their workforce following the diagnosis of one or more employees infected with COVID-19.
- If the Company decides to suspend employment contracts based on force majeure causes or an official health alert, or economical, technical, productive or organizational reasons arising from the situation, the Company will not be required to pay the corresponding salaries, provided that the Company follows the specific procedure for suspension of contracts and there are real causes. However, the Company will have to keep paying Social Security contributions unless the government authorises an extraordinary exemption; and
- If the Company decides to suspend work on its own initiative and it does not follow the legal procedure to suspend the contracts, the absence of the employees must be treated as paid leave.
Where can employers and employees access local and national advice?
- Spanish Ministry for Health: https://www.mscbs.gob.es/profesionales/saludPublica/ccayes/alertasActual/nCov-China/home.htm
- Spanish Ministry for Employment: http://prensa.mitramiss.gob.es/WebPrensa/pdf/guia_definitiva.pdf
- Regional Health Departments
Additionally, Spanish Authorities recommend that in case of business trips, the health area of the companies or the occupational hazards prevention service must assess the specific risk of the trip and the possible contact with cases of COVID-19, and will provide the appropriate recommendations, following the guidelines and recommendations made by the Health Authorities.