Royal Decree Law 30/2020 has been published, on social measures in defense of employment with a new expansion of the existing ERTES and the possibility of applying new measures for companies affected by restrictions.
Many doubts arise such as what are the requirements to extend the existing ERTES or request new Temporary Employment Regulation Files; what the extension of the ERTES implies, what are the procedures that must be carried out and what the new ERTES of impediment and limitation created by the RD Law consist of. We collect the information published by Grupo 2000 according to sources from the BOE itself.
Will companies in ERTE have to maintain employment? Until when will they have to keep their workers?
According to article 5 of the rule, on the safeguarding of employment, if your company carried out an ERTE regulated according to RD Law 8/2020, the maintenance of employment would be 6 months from the moment you reinstated the first worker,
If the ERTE was carried out according to RD Law 24/2020, the 6 months would count from the date of entry into force of said rule.
But, if you decide to extend your ERTE with exemptions under the new RD Law or apply any of the existing specialties, you would be obliged to keep your job for a new period of 6 months.
If your company is in ERTE of force majeure, this additional 6-month period would begin to run from the date the first mandatory 6-month period ends. That is, you would have to keep your job for 12 months in total.
Can the ERTES of force majeure of RD Law 8/2020 be extended?
Article 1 of the new RD Law extends force majeure ERTES automatically until January 31, 2021.
However, companies that decide to extend the ERTES as established by the new rule, will be obliged to maintain the level of employment for 6 more months.
These companies will have to process the collective benefit for workers again, on the date of entry into force of the RD Law and before October 20, 2020. It must be taken into account that the extension of the ERTE does not imply continuing to apply exemptions.
What extensions of ERTES will be entitled to exemptions? Companies with reduced recovery of activity
The First Additional Provision provides for exemptions from social security contributions until January 31 for affected workers for those companies in sectors with a reduced rate of recovery of activity that automatically extend their ERTES of force majeure:
Companies with less than 50 workers: 85% exemption on the business contribution.
Companies with more than 50 workers: 75% exemption on the business fee .
But not all companies will be able to benefit, only those whose activity is included in the CNAE list that is included in the BOE of RD Law 30/2020 will do so.
Exonerations may also apply to those companies with ERTE of force majeure extended whose business depends on or are part of the value chain of companies included in the CNAE.
To consider that they are part of the value chain or indirectly dependent on these companies, it will have to be proven that at least 50% of their turnover during 2019 depended directly on them. Or that its real activity depends indirectly on that carried out by the companies included in the CNAE list.
These exemptions will be applied to companies in ERTE of force majeure that meet the above requirements, or companies in force majeure that have requested an ERTE ETOP or companies in ERTE ETOP, that meet the above requirements.
In order for them to apply to your company, you will have to request that your dependent company or a member of the value chain be declared between October 5 and 19, 2020 before the Labor Authority.
This application will be accompanied by an explanatory memorandum of the circumstances that support you for its application and supporting documentation.
The Labor Authority will have a period of 5 days to resolve. After this period, it will be understood as approved by positive administrative silence.
These exemptions will be incompatible with those of the ERTES by limitation and impediment.
What is a disability ERTE? What companies can request it?
Article 2 of RD Law 30/2020 creates a new type of ERTE, the so-called ERTE by impediment.
It can be requested by all companies in sectors or activities that cannot open or see any of their work centers closed as a result of new restrictions that occur, as of October 1.
What exemptions do companies that apply ERTE of impediment have?
Entities affected by Spanish or other country restrictions will benefit from exemptions in social security contributions in the following percentages:
Companies with less than 50 workers before February 29, 2020: 100% exemption during the time they close.
Companies with more than 50 workers: 90% exemption during closing.
How do you request an ERTE for disability?
The ERTE for impediment will be requested before the Labor Authority according to the procedure of article 47.3 of the Workers’ Statute.
Again the company will have to request the benefits of the workers before the SEPE.
In order to apply the exemptions, it will be essential to communicate in TGSS a responsible statement regarding each contribution account and month.
Likewise, the worker will have to be identified with a code with the variation of their situation in Social Security. This code will be indicated by Social Security in the next RED newsletters.
When the ERTE ends, the resignation must be communicated in the RED System.
How long does an ERTE for disability last?
The ERTE for impediment may be extended during the measures that restrict the activity.
Unless the company expressly renounces the ERTE, in which case, the exemptions must cease to apply from the effective date of the resignation.
What is an ERTE by limitation? What companies can request it?
The already named ERTE by limitation is the ERTE by force majeure that would apply to companies that are prevented from carrying out their activity in any of their work centers due to new restrictions.
What exemptions do ERTES have by limitation?
According to article 2.2, ERTES by limitation may be exempted from social insurance according to their workforce volume. The percentage of exemptions will gradually decrease between October and December:
Exemptions in companies with less than 50 workers:
October: 100%
November: 90%
December: 70%
January: 60%
Exemptions in companies with more than 50 workers:
October: 90%
November: 80%
December: 60%
January: 50%
Companies that request an ERTE due to limitation may benefit from exemptions for the periods and percentages of working hours affected by the suspension.
These exemptions will apply for as long as the workers’ suspensions are extended.
How do you request an ERTE for limitation?
It must be requested before the Labor Authority according to the procedure of article 47.3 of the Workers’ Statute.
Your company will also have to process the collective request for benefits before the SEPE.
In order to apply the exemptions, it will also be essential to communicate in TGSS the code of responsible declaration for each contribution account and month and then the code according to the worker’s situation, indicating the variation code in Social Security.
Once the ERTE ends, the waiver of the exemptions must be communicated through the RED System.
As soon as there are news about the keys to communicate all these situations in Social Security we will tell you about them on our blog.
How long can an ERTE last due to limitation?
The duration of the ERTE by limitation may be a maximum of January 31, 2021.
What happens with the ERTE ETOPs linked to Covid-19? Can you request a new one?
According to article 3 of the standard, new employment regulation procedures based on economic, technical, organizational and production causes related to Covid-19 may be initiated between September 30 and January 31, 2021. It will also be for them application of article 23 of RD Law 8/2020.
Companies that are in a situation of ERTE of force majeure (article 22 of RD Law 8/2020) may request an ERTE ETOP before the Labor Authority, before the end of the first procedure.
In these cases, the date of effects of the ERTE ETOP will be rolled back to the end date of the ERTE of force majeure indicated.
When do ERTE ETOPs end? Can an ERTE ETOP be extended?
The ERTE ETOPs that were already in force will continue to apply until the planned end date.
However, the end date may be extended, in which case, it would be done under the terms of the new Royal Decree, provided that an agreement is reached in the consultation period.
The extension of the ERTE will have to be requested before the Labor Authority according to RD 1483/2012 and article 23 of RD Law 8/2020.
Companies in ERTE of force majeure or ETOP that extend must submit a new collective request
If your company extends its ERTE of force majeure or ERTE ETOP as of the entry into force of the new rule, you will have to submit the collective application by workers to the SEPE before October 20, 2020, dated from October 30 of September.
Likewise, all variations in activity and inactivity to expired month will have to be communicated through the Certific @ 2 application of the SEPE and the disaffections of the measures for one or more workers.
What happens if my company does not want to automatically extend the ERTE?
According to article 8, companies that decide to disable a worker or all, will have to notify the SEPE of the withdrawal prior to their activity.
As RD Law 30/2020 enters into force on the same day of its publication, that is, September 30, it is understood that the ERTE is automatically extended, since the norm requires a previous day for communication that would not be possible to apply .
However, if you do not want the employment safeguard to be extended for another 6 months, if your company comes from a force majeure ERTE or ETOP, which does not automatically generate the right to exonerations, you could request the end of the ERTE.
What companies would be excluded from the ERTES exemptions?
The exclusions of RD Law 8/2020 are extended for companies with tax domicile in tax havens or that carry out dividend distribution.
Will they be able to work overtime or contract if an ERTE is applied?
According to article 7, new workers may not be hired, nor outsourced, while the ERTE lasts.
Except if the people to be hired provide services that no other worker can perform and is duly justified.
In these cases, the company will have to previously inform the legal representative of the workers.
Companies that violate the provisions of this article could be the source of violations after opening the Labor Inspectorate.
The exemptions must correspond to the worker’s benefit period. According to article x of the RD Law, for the purposes of control of exemptions, the recognition of the benefit for the period of suspension or reduction of working hours will be verified with the SEPE.
