ERTE for COVID-19 resurgence in Spain, how should the company apply for it?

• Companies may apply for an ERTE for COVID-19 resurgence when the development or practice of their activities is affected by the new measures adopted by the competent authorities: capacity limitations, working hours, safety distances, etc. Companies must prove that such actions hinder the development of their activity.

• Companies that have not previously applied for an ERTE
• Companies that had an approved ERTE, but expressly renounced it in its entirety or had disaffected all employees
• Companies in a situation of partial force majeure with an ERTE due to force majeure in effect, affected, in either one or more of their workplaces, by the new restrictive or containment measures due to COVID-19 resurgence.

1. Communication to the employees or, if applicable, to the employees’ representatives, of the start of the ERTE
2. Communication to the ERTE Labour Authority. The Labour Authority will collect, as a mandatory requirement, a report from the Labour and Social Security Inspectorate
3. Resolution by the Labour Authority within five working days concerning the existence of force majeure (the report’s request to the Labour and Social Security Inspectorate will interrupt the period for issuing of the Labour Authority’s resolution until the said report is released)
4. If the Labour Authority considers the existence of force majeure, the company may adopt the necessary measures, and must, in all cases, inform the employees
5. If there is no resolution within five working days, force majeure will be considered as verified by affirmative administrative silence.

• Communication forms to the Labour Authority specifying the measures to adopt
• Number and job classification of the employees affected by the contract suspension or the reduced working hours measures. If the procedure concerns more than one workplace, this information must be broken down by the workplace and, where appropriate, the province, and the autonomous community. Details to include: ID, full name, social security number, date of entry into the company, professional group, specialty, category, daily/monthly salary, and age
• Criteria for the election of employees affected by the suspension of contracts and working hours reduction measures
• Report on the impact of force majeure on the company’s activity. It is the most relevant document, and it should establish a clear link between the measures taken by the government and their direct consequences on the company’s activity
• Documentation supporting the cause of force majeure
• Copy of the communication to the employees or their representatives at the beginning of the ERTE.

• In addition to the corresponding wage savings from the suspension of contracts or reduction of working hours, the approval of an ERTE due to COVID-19 resurgence exempts companies from paying social security contributions as follows:

PERCENTAGE OF EXEMPTION until the 30 September 2020

• Unlike the case of the ERTE due to force majeure of Royal Decree-law 8/2020 of 17 March, no ancillary obligations such as overtime, maintenance of employment rates, outsourcing work, or new hiring, have been expressly arranged for the company.