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Here’s what you need to know about how the new ERTEs will work

After months of meetings, discussions and uncertainty, the ERTEs were finally extended until next January 31. It has not been a simple agreement, but it has been achieved, however, it is necessary to review well all the clauses of this new agreement so that the changes do not catch us unprepared. This is all you need to know about how ERTEs will work until the end of January.


Companies that have current temporary employment regulation files (ERTE) originating from the pandemic must make a new collective application for unemployment benefits before October 20, as stated in the Royal Decree-Law that extends the ERTE until October 31 January published this Wednesday in the Official State Gazette (BOE) and approved yesterday by the Council of Ministers.


The ERTEs in force will be automatically extended, keeping the workers included in them their right to collect benefits, the amount of which will amount to 70% of the regulatory base.


If the ERTE automatically extended belong to any of the 42 activities that the decree considers as most affected by the pandemic, they will also have the right to exemptions in business contributions of 85% for each month of the period October 2020-January 2021 in the case of that the company had fewer than 50 workers on its staff as of February 29 of this year, and 75% if it had more than 50 employees. These exemptions will apply both to workers who remain in the ERTE and to those who leave.


The rule, the result of the agreement with the social agents, considers companies most affected by the pandemic those that have recovered from the ERTE less than 65% of the workers and that have more than 15% of the total regulated people in a specific CNAE of members of the General Regime. In total, the list includes 42 activities, among which are hotels, air and sea transport and shows.


In addition to the ERTEs for these activities, those companies that are part of its value chain or whose business depends mostly on the 42 activities established in the standard may benefit from these 75% and 85% exemptions.


It will be understood that they are members of the value chain or indirectly dependent on them, the companies whose turnover, during 2019, has been generated at least 50% in operations carried out directly with those included in any of the CNAE codes -09 referred to in the standard, as well as those whose actual activity indirectly depends on that actually carried out by the companies included in said codes.


The declaration of dependent companies or members of the value chain must be requested before the labor authority that had issued the express or tacit resolution of the ERTE that is in force, duly accrediting the aforementioned circumstances, between October 5 and 19.


These exemptions may also be applied to companies that go from an ERTE of force majeure by Covid to one of economic, technical, organizational and production causes (ETOP) whose activity is classified in any of the sectors included in the standard, or to those that have been classified as members of the value chain that also carry out this transition. They will also apply to companies that are in an ERTE for economic, organizational, technical and production reasons (ETOP) if they are part of the 42 activities covered by the standard.


These exemptions will be incompatible with those established for the two new ERTE figures that are created in the decree and that come to replace the so-called ‘ regrowth ERTE ‘, which were established in the previous extension.




In the case of these two new forms of ERTE, to which companies of any sector and activity may take advantage, two types are distinguished: ERTE due to impediment of activity as a result of restrictions adopted by Spanish and foreign authorities (for example, the nightlife companies), and ERTEs for limitation of activity, intended for companies that see their activity altered when a local, regional or state authority limits, for example, capacity and hours.


These ERTE of activity limitation will be accompanied by high business exemptions from quotas, to be applied from October to January, for workers with suspended activities. Specifically, if the company had fewer than 50 workers as of February 29 of this year, the exemptions will be 100% in October, 90% in November, 85% in December and 80% in January. If it had more than 50 workers, the percentages reach 90%, 80%, 75% and 70%, respectively.


For their part, ERTEs for the impediment of the activity (closure by decision of the authorities) will have exemptions of 100% if the company’s workforce was less than 50 workers in February of this year and 90% if this figure was higher.


The rule maintains the limits imposed in the previous extension of the ERTE: while it remains in force, no overtime, outsourcing activities or making new direct or indirect hires except in justified cases.


Likewise, companies domiciled in territories considered tax havens will not be eligible for them and companies will not be able to distribute dividends in the fiscal year in which the ERTE is applied, except if they return the exemptions enjoyed.


The commitment to maintain employment for six months is also maintained, to which is added a new commitment for another six months. Thus, the companies that receive the new exemptions included in this extension of the ERTE will be committed to a new period of six months of safeguarding employment, although if they were affected by a previous commitment, the new period of six months will begin to count once completed said prior commitment.


The “prohibition” on dismissal for objective reasons and the suspension of temporary contracts, including training, relief and interim contracts, is also extended until January 31, 2021.




The text contemplates that the unemployment benefits associated with the ERTE will also be maintained until January 31. The companies affected by this new extension and those that are applying an ETOP must formulate a new collective application for unemployment benefits before next October 20.


The amount of the benefit will be 70% of the regulatory base, even if six months have elapsed since its receipt (thus avoiding a drop to 50% of the regulatory base) and the ‘counter to zero’, which rises from 180 to 196 days, It will run until January 1, 2022.


Likewise, the norm improves the protection of discontinuous fixed and regular and periodic jobs that are repeated on certain dates, which will have access to an extraordinary benefit.


In addition, an economic compensation is established for those workers in ERTE who have seen their benefit reduced in proportion to their working time due to having one or more part-time employment relationships at the time of recognition.


As of the entry into force of this decree, if the receipt of the unemployment benefit associated with the ERTE is made compatible with the performance of a part-time job not affected by suspension measures, the amount of the benefit will not be deducted from part proportional to the time worked.


For those workers included in ERTE who are not beneficiaries of unemployment benefit in respect of which the company does not have the obligation to contribute, the period of suspension or reduction of working hours will be considered as effectively listed, taking as the contribution base that of the previous six months.



Another novelty of this extension is that ERTE workers will have priority to access the training initiatives of the vocational training system for employment.