Should my company have a contingency plan? What measures should the plan include? Can I/should I isolate my employees, conduct health checks or questionnaires on their private life?

  • Companies are under an obligation to ensure continued and permanent health and safety conditions for their employees, taking account of general prevention principles.
  • Considering current events, companies should, despite not being required to by law, adopt a Contingency Plan for COVID-19, which may answer the impacts caused by said disease within the company.

 

Am I required to provide any special protection equipment to my employees?

  • All companies must ensure that their employees have mouth and nose protection masks.
  • The means to ensure a proper hand washing with regularity must be provided.
  • A distance of, at least, 1,5 meters between individuals must be observed.

 

Should I take special care with pregnant employees, employees with reduced working capacity, breathing difficulties or minors?

To the extent that there are employees more prone to contagion, specific measures should be considered to ensure an increased level of protection in specific cases. Whenever feasible, such measures should be reviewed together with the workplace health and safety services and aligned with the health authorities’ recommendations.

 

Do I have any special information duty towards my employees?

Although this duty is not expressly provided for in the recently enacted provisions, companies are obliged to ensure safety and health conditions to their workers on a continuous and permanent basis, including the duty to draw up contingency plans whenever the risk situation so justifies and to that end, they shall inform all their employees thereof.
In this regard, taking into account the general principles of risk prevention for their workers, the companies, although not expressly obliged, should adopt a Contingency Plan in the context of infection by COVID-19, which provides for measures to control the spread of the disease within the company.

 

If the prophylactic isolation of employees is necessary or recommended, should I wait for a decision from the health authority or can I do it on a preventive basis? Can and/or should isolated employees continue to work from home?

If there is well-founded suspicion of contagion by COVID-19, the employee’s isolation must, to the extent possible, result from a decision from the health authority. If such decision is not issued in a timely manner, isolating the employee – and having them leave the company's facilities, if applicable – will be decided by the employer, and the employee must obey said order. If the contagion symptoms do not prevent the performance of the employee’s duties, remote work mechanisms may be implemented, in which case the company must create the necessary conditions.


Employees should only return to their workplaces upon receiving medical discharge.

 

What is the impact of the isolation on the employment contract? Are employees still entitled to their regular remuneration and meal allowance? Are attendance-based payments affected?

If the isolation does not affect the performance of the employee's duties, it will have no impact employment-wise and the employee will still be entitled to his/her remuneration. As for other components, namely those linked to regular travel to/from the company’s facilities, a case-by-case assessment must be made to confirm that their requirements are still met in an isolation situation.

 

If any employees have booked holidays, what can I do?

The scheduling and change of previously booked holidays should ideally be agreed with the employees.

 

Can an isolated employee continue to work remotely? If so, what must I ensure?

Assuming that the isolation does not result from inability to work, the employee may continue to work remotely and the company must ensure that the necessary requirements are met in the specific case. Ideally, the employee should agree to work remotely and any refusals to work remotely should be managed by the company on a case-by-case basis in order to ensure the continuity of the production process and the legal guarantees of the employee.

 

Can an isolated employee continue to work remotely? If so, what must I ensure?

Assuming that the isolation does not result from inability to work, the employee may continue to work remotely, and the company must ensure that the necessary requirements are met in the specific case. Ideally, the employee should agree to work remotely and any refusals to work remotely should be managed by the company on a case-by-case basis in order to ensure the continuity of the production process and the legal guarantees of the employee.

 

Are there any benefits granted in case of suspension of the employment agreement or reduction of the normal working period?

Yes, with the approval of Decree-Law No. 16/2020, of 30 April 2020 (“DL 16/20”), the following employment support measures were approved in the context of the Covid-19 pandemic:

  • Extraordinary allowance in case of suspension of the employment agreement or reduction of the normal working period, to be paid by the Social Security, during the period of suspension or reduction, corresponding to an amount equivalent to 60% of the employee’s remuneration referred to in the Remunerations’ Statement for February 2020.
    If it has been opted for the suspension, the employer shall be exonerated from the obligation provided for in Article 15.7 of the Labour Law, i.e. the payment of half the employee's remuneration during this period. If the employer has opted for the reduction of the normal working period, the latter must pay the employee the amount corresponding to the difference between the extraordinary allowance paid by the Social Security and, when superior, the value of the hours worked.
    This extraordinary allowance cannot be cumulated with the social benefits that replace income from work (parenthood, old age and absolute incapacity), but it can be cumulated with pensions for death and relative incapacity.
  • Exemption from the obligation to pay Social Security contributions
    In cases where the employer complements the extraordinary allowance paid by the Social Security or in the situation of voluntary payment of the remainder of the employee's remuneration, the employer is relieved of the duty to contribute, in the amount at his charge, to the Social Security scheme (in relation to these amounts).
    • It was also established the waiver of the obligation to contribute to the contributory regime, in the employer's portion, in relation to the remuneration of the employees registered until 29 February 2020, without prejudice of the obligation to submit the monthly Remunerations’ Statement and to proceed with the normal retention of the contribution payable by the employees. However, the duty to pay social contributions by employees for the months in which DL 16/2020 is in force, is deferred to the second month following the expiry of the diploma.

 

Which are the conditions for access to the benefits approved by DL 16/2020?

The right to any of the benefits granted under Decree-Law no. 16/2020, of 30 April, depends on the cumulative verification of the following conditions:

  • Suspension of the employment agreement or reduction of the normal working period, under the terms foreseen by the Labour Law. However, the suspension and the reduction may occur by means of a simple communication to the employee, being the employer being exempted from complying with the formalities applicable to these figures.
  • Suspension of employment or reduction of the normal working period caused by the Covid-19 pandemic (the suspension and reduction of the normal working period are considered to be caused by the Covid-19 pandemic whenever they have been communicated by the employer to the affected employees after 21 March 2020 and that are shown to be indispensable to ensure the viability of the company and the maintenance of the employment agreements or when it is necessary to ensure the fulfilment of an order issued by a public authority, in accordance with the legislation that declared the state of emergency).
  • Enrolment of the employer and the employee in the Social Security contribution regime

 

What if I have outstanding social security contributions?

The existence of outstanding social contributions does not prejudice the access of employers and their employees to the benefits foreseen in DL 16/2020.

Employers with outstanding social contributions for the period from October 2017 to February 2020 are exempt from paying 10% of the amount of the accumulated debt and from the penalties provided for by law, provided that they pay the total amount owed to Social Security by 31 January 2021.

 

I fulfil the conditions of eligibility for the extraordinary benefits. How can I apply for them?

In order to benefit from the above mentioned measures, the employer must request them through an application addressed to the National Institute of Social Security, which must be accompanied by (i) a list of the employees whose employment agreements have been suspended and whose normal working periods have been reduced and (ii) a declaration, under promise of honour, of the veracity of the information contained in the said list.

 

Can terminations occur during the period of support granted under Decree-Law No. 16/2020, of 30 April 2020?

No. During the during the validity of this diploma and in the three months following its repeal, the employment agreements entered into with employees who have been granted the extraordinary allowance, cannot be terminated for any of the reasons provided for in the Labour Law (expiry, agreement between the parties, termination at the initiative of the employer with just cause and termination for market, technological or structural reasons relating to the company or establishment).

 

How long will the employment support measures within the context of Covid-19 pandemic last?

  • DL 16/2020 came into force on 1 May 2020 but did not establish its duration.
  • It is up to the Government, considering the evolution of the pandemic, to assess, on a monthly basis, the appropriateness and the need to maintain the extraordinary regime provided for therein.

 

Have any measures been approved for sole owners, self-employed employees, managers and administrators and domestic service employees?

Yes, if they are registered in the Social Security contribution scheme until 29 February 2020, they may benefit, under DL 16/2020, from an extraordinary allowance equivalent to 60% of the value of the conventional remuneration in force, which is the basis for Social Security contributions, according to the last bracket chosen by the beneficiary, in the event of total or partial loss of income from work caused by the Covid-19 pandemic.

The extraordinary allowance cannot be cumulated with the social benefits that replace income from work (parenthood, old age and absolute incapacity), but it can be cumulated with pensions for death and relative incapacity.

 

Is there any specific regime applicable to Public Administration servants?

  • Yes, the members of the Government and the executive bodies of public legal entities included in the indirect administration of the State shall identify the human resources strictly necessary to ensure the operation, under a minimum service regime, of the public services they control (minimum services are considered to be those whose provision is fundamental to ensure the functioning of the Public Administration and the provision, to citizens and companies, of goods and services of an urgent or unavoidable nature).
  • The public servants who are waived from their attendance duty shall remain available by telephone and must present themselves at the workplace whenever so required by their superior.
  • Non-attendance under the abovementioned terms may generate disciplinary liability.
  • Public servants must continue to pursue their professional activities, off-site (telework) and through communication and information technologies.
  • Additionally, a remuneration supplement was created by Decree-Law No. 17/2020, of 30 April 2020, for public servants, agents and public administration servants who carry out their professional activity in the services for the prevention or control of Covid-19 disease or under conditions of direct exposure to the SARS-Cov-2 virus, the effects of which date back to 28 March 2020. The amount of the said remuneration supplement shall be fixed by a Government resolution and may vary according to the degree of risk to which their recipients are exposed.

 

 

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This information is being updated on a regular basis.

All information contained herein  and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.