12-02-2021

Royal Decree-Law 2/20212

Of January 26, of reinforcement and consolidation of social measures in defense of employment.

The measures included in this regulation are intended to make the necessary adjustments to maintain the support measures established in Royal Decree-Law 30/2020, of September 29, and which are still considered essential for the recovery of the productive fabric.

The modifications affect three aspects:

the extraordinary termination benefit
the extraordinary benefit for seasonal self-employed workers
the extension of the ordinary termination of activity benefit, compatible with self-employment, in favor of self-employed workers who have not had access to it pursuant to Royal Decree-Law 24/2020, of June 26, on social measures for the reactivation of employment and protection of self-employment and competitiveness of the industrial sector, including the maintenance of access to the termination of activity benefit for those workers who, due to a lack of such benefit, have been receiving it until January 31, 2021.

The Royal Decree-Law includes eight articles, distributed in two titles, six additional provisions, five transitory provisions, a single derogatory provision, eleven final provisions and an annex.

Highlights:

TITLE I IV SOCIAL AGREEMENT IN DEFENSE OF EMPLOYMENT

1. Extension of force majeure temporary labor force adjustment plans based on causes related to the pandemic situation and extraordinary contribution measures. Art.1.

The extension of all ERTEs based on a cause of force majeure related to COVID-19, until May 31, 2021, regulated in Article 22 of Royal Decree-Law 8/2020, of March 17, is established in order to cover the entire temporary period covered by the duration of the state of alarm declared by Royal Decree 926/2020, of October 25.

The temporary force majeure employment regulation proceedings due to impediments to the activity authorized on the basis of the provisions of article 2.1 of Royal Decree-Law 30/2020, of September 29, and in the first additional provision.2 of Royal Decree-Law 24/2020, of June 26, will continue to be applicable until their termination in accordance with the favorable resolution. The force majeure ERTE of limitation to the normal development of the activity based on the provisions of Article 2.2 of Royal Decree-Law 30/2020, of September 29, will continue to be applicable until May 31, 2021.

2. Temporary employment regulation proceedings due to impediment or limitations of activity. Art. 2.

Recognizes the possibility of presenting new ERTE due to limitations or impediments, in identical terms to those established by Article 2 of Royal Decree-Law 30/2020, of September 29, and in accordance with the causes described therein.

New: Once a company has obtained a favorable resolution in an ERTE of force majeure due to impediment to the activity, it can, without the need to process another new file, apply the measures corresponding to the situation of limitations to the normal development of the activity, and vice versa, without prejudice to the obligations of communication and the percentages of exemption that correspond in each case.

The foregoing shall also apply with respect to the resolutions already passed in accordance with the provisions of Article 2 of Royal Decree-Law 30/2020, of September 29 and the first additional provision.2 of Royal Decree-Law 24/2020, of June 26.

Extension of complementary contents of Royal Decree-Law 30/2020, of September 29th, on social measures in defense of employment. Art. 3

The effects of the rest of the complementary contents of the III ASDE included in Royal Decree-Law 30/2020 of September 29 are extended, such as the specialties applicable to the proceedings linked to COVID-19 but based on economic, technical, organizational or production causes, the limits related to the distribution of dividends and tax transparency, overtime and new outsourcing, as well as the limitations and provisions established in relation to terminations based on the causes underlying the ERTEs related to COVID-19 and the interruption of the computation of temporary contracts.

Safeguarding of employment: The effects of Article 5 of Royal Decree-Law 30/2020 of September 29th are extended, so that the conditions applicable to such safeguarding, both with respect to the exonerations enjoyed prior to the entry into force of this Royal Decree-Law, and with respect to those contemplated therein, are those described in the aforementioned Article 5, as follows:

– The commitments to maintain employment generated by virtue of the benefits set forth in Royal Decree-Law 8/2020, of March 17, in Article 6 of Royal Decree-Law 24/2020, of June 26, and in Royal Decree-Law 30/2020, of September 29, continue to be in force under the terms set forth in said regulations and for the periods set forth therein.

– The companies that, in accordance with the provisions of this Royal Decree-Law, receive exemptions in Social Security contributions, are committed, based on the application of such exceptional measures, to a new six-month period of safeguarding employment, the content, requirements and calculation of which will be carried out under the terms established in the sixth additional provision of Royal Decree-Law 8/2020, of March 17 and in Article 5 of Royal Decree-Law 30/2020, of September 29.

– If the company is affected by a previously acquired commitment to maintain employment, the beginning of the new period foreseen will take place when that commitment has ended.

Once the companies have completed the 6-month periods of safeguarding employment that they have acquired, they undertake, by virtue of this Royal Decree-Law, to maintain employment during another new 6-month period, the computation of which begins once the previous periods have been completed in their entirety.

4. Extension of the protection measures for workers included in Royal Decree-Law 30/2020, of September 29th, on social measures in defense of employment. Art. 4

Extraordinary measures for the protection of workers are extended:

– The unemployment protection measures provided for in Article 8 of Royal Decree-Law 30/2020, of September 29, 2010, remain in force, with the preservation of the 70% rate applicable to the regulatory base for the calculation of the benefit.

– The measures for the protection of persons with discontinuous fixed-term contracts provided for in Royal Decree-Law 8/2020, of March 17, 2010, are maintained.

– In addition, the extraordinary benefit for persons with discontinuous fixed-term contracts or who perform fixed and periodic jobs that are repeated on certain dates, by virtue of the extension of Article 9 of Royal Decree-Law 30/2020, of September 29, will continue to be applicable; the measures provided for in Article 10 of said regulation regarding the coverage of contribution periods of those workers included in temporary employment regulation proceedings who are not beneficiaries of unemployment benefits; and the compatibility of unemployment benefits with part-time work under the terms of Article 11 of Royal Decree-Law 30/2020, of September 29, will continue to be applicable.

TITLE II SUPPORT MEASURES FOR SELF-EMPLOYED WORKERS

1. Extraordinary cessation of activity benefit for self-employed workers affected by a temporary suspension of all activity as a result of a resolution of the competent authority as a measure to contain the spread of the COVID-19 virus. Art.5

As of February 1, 2021, self-employed workers who are forced to suspend all their activities as a result of a resolution adopted by the competent authority as a containment measure in the spread of the COVID-19 virus, will be entitled to a severance benefit of an extraordinary nature:

a. Be affiliated and registered in the Special Social Security Scheme for Self-Employed or Self-Employed Workers or, as the case may be, in the Special Social Security Scheme for Sea Workers, before January 1, 2021.

b. Be up to date in the payment of Social Security contributions. However, if on the date of the suspension of the activity this requirement is not met, the managing body will invite the self-employed worker to pay within a non-extendable period of thirty calendar days to pay the contributions due. The regularization of the overdraft will produce full effects for the acquisition of the right to protection.

Amount of the benefit: 50% of the minimum contribution base corresponding to the activity performed.

This amount will be increased by 20 percent if the self-employed worker is a member of a large family and the only income of the family unit or similar during that period comes from the suspended activity.

The right to the benefit begins on the day following the adoption of the activity closure measure adopted by the competent authority.

During the time that the activity is suspended, the self-employed worker will remain registered in the corresponding special regime and will be exempted from the obligation to pay contributions. The exoneration of the payment of the contributions will be extended from the first day of the month in which the measure of closing of activity is adopted until the last day of the month following the one in which such measure is lifted or until May 31, 2021, if the latter date is earlier.

Duration: Receipt of the benefit will have a maximum duration of four months, with entitlement to the benefit ending on the last day of the month in which the lifting of the measures is agreed or on May 31, 2021 if the latter date is earlier.

2. Extraordinary cessation of activity benefit for those self-employed workers who cannot cause entitlement to the ordinary cessation of activity benefit provided for in Article 7 of this Royal Decree-Law or to the cessation of activity benefit regulated in Articles 327 and following of the consolidated text of the LGSS, approved by Royal Legislative Decree 8/2015, of October 30. Art.6

Article 6 introduces the possibility of accessing an extraordinary termination benefit for self-employed workers who are not affected by the closure of their activity but whose income is reduced and who do not have access to the termination benefit regulated in article 7 or in articles 327 and following of the consolidated text of the LGSS or to the termination benefit provided for in article 7.

– They must not have net taxable income from self-employment in the first half of 2021 of more than 6,650 euros.

– In the first half of 2021, they will prove that their taxable income from self-employment activity is lower than in the first quarter of 2020.

Amount: 50% of the minimum contribution base corresponding to the activity performed.

Accrual: This extraordinary benefit for termination of activity may begin to accrue with effect from February 1, 2021 and will have a maximum duration of 4 months, provided that the application is submitted within the first twenty-one calendar days of February. Otherwise, the effects are fixed on the first day of the month following the month in which the application is submitted and its duration may not exceed May 31, 2021.

Incompatibility: It will be incompatible with the receipt of remuneration for the performance of work for others, unless the income from the work for others is less than 1.25 times the amount of the minimum wage, with the performance of another self-employment activity; with the receipt of income from a company; with the receipt of a Social Security benefit except for that which the beneficiary was receiving because it was compatible with the performance of the activity he/she was performing.

In the case of self-employed workers included in the Special Regime for Sea Workers, the benefit for termination of activity will also be incompatible with the aid for fleet cessation.

A procedure for provisional recognition and subsequent review of benefits is established.

The collaborating mutual insurance companies and the Social Marine Institute will provide the Social Security General Treasury with the necessary information, through the procedures established by the latter, for the application of the provisions of this section, both at the time of the provisional recognition of the benefit and in the subsequent review.

As of September 1, 2021, all provisional resolutions adopted will be reviewed.

Entitlement to severance benefit compatible with self-employment Art. 7

1) As of February 1, 2021, self-employed workers will be able to apply for the severance benefit provided for in Article 327 of the consolidated text of the LGSS, provided that they meet the requirements established in this provision and in paragraphs a), b), d) and e) of Article 330.1 of the consolidated text of the LGSS.

2) Access to the benefit will require proving in the first half of 2021 a reduction in taxable income from self-employment of more than 50% of that of the second half of 2019; as well as not having obtained during the indicated half of 2021 a net taxable income of more than 7,980 euros.

For the calculation of the reduction in income, the period in discharge in the second half of 2019 will be taken into account and compared with the proportional part of the income accrued in the first half of 2021 in the same proportion.

In the case of self-employed workers who have one or more dependent workers, they must prove, at the time of applying for the benefit, compliance with all labor and Social Security obligations that they have assumed. For this purpose, they will issue a responsible statement, and may be required by the mutual insurance companies collaborating with the Social Security or by the managing entity to provide the necessary documents to prove this.

3) This benefit may be received until May 31, 2021 at the latest, provided that the worker is entitled to it under the terms set forth in Article 338 of the consolidated text of the LGSS.

Likewise, self-employed workers who become entitled to this benefit on February 1, 2021 and whose right to termination provided for in the aforementioned provision is exhausted before May 31, 2021, will receive this benefit until May 31, 2021, provided that they meet the requirements for such purpose.

Amount: 50% of the minimum contribution base corresponding to the activity performed.

A procedure for provisional recognition and subsequent review of benefits is established.

Extraordinary severance benefit for seasonal workers. Art.8

Article 8 establishes an extraordinary termination benefit for seasonal workers who carry out their activity for at least three months during the first half of the year.

Seasonal workers are considered to be those self-employed workers whose only work throughout 2018 and 2019 had been developed in the Special Regime for Self-Employed Workers or in the Special Regime for Sea Workers for a minimum of four months and a maximum of six months in each of the years.

The self-employed worker will be considered to have developed a single job in 2018 and 2019 provided that, if he/she has been registered in a social security regime as an employee, this registration does not exceed 120 days throughout those years.

Requirements for entitlement to the benefit:

a) Have been registered and paid contributions in the Special Regime for Self-Employed Workers or in the Special Regime for Sea Workers as a self-employed worker for a minimum of four months and a maximum of six months of each of the years 2018 and 2019, provided that this time frame covers a minimum of two months in the first half of the year.

b) Not to have been registered or assimilated to registration as an employee in the corresponding Social Security regime for more than 60 days during the first half of the year 2021.

c) Not to obtain during the first half of the year 2021 a net income computable for tax purposes that exceeds 6,650 euros.

d) Be up to date in the payment of Social Security contributions. However, if this requirement is not met, the managing body will invite the self-employed worker to pay the contributions due within a non-extendable period of thirty calendar days. The regularization of the overdraft will produce full effects for the acquisition of the right to protection.

Amount of the benefit: it will be equivalent to 70% of the minimum contribution base corresponding to the activity performed under the Special Social Security Regime for Self-Employed Workers or, if applicable, under the Special Social Security Regime for Seafarers.

Management: The management of this benefit will correspond to the mutual insurance companies collaborating with the Social Security or to the Social Marine Institute.

A procedure for provisional recognition and subsequent review of benefits is established.

COMPANIES BELONGING TO SECTORS WITH A HIGH RATE OF COVERAGE BY TEMPORARY LAYOFFS AND A LOW RATE OF RECOVERY OF ACTIVITY. First additional provision.

The first additional provision includes companies belonging to sectors with a high ERTE coverage rate (calculated at a percentage of 15% of the total number of salaried employees registered in the General Social Security System) and a low activity recovery rate (defined as at least 70% of the total number of salaried employees belonging to such sector or CNAE being affected by ERTE). For these companies and those that were qualified as members of their value chain or dependent on them, in accordance with the provisions of the first additional provision of Royal Decree-Law 30/2020, of September 29, a special protection is maintained, through the automatic recognition of exemptions in the corporate social security contribution applicable both to the persons affected by ERTE and to those not affected.

Thus, extraordinary measures are included in relation to Social Security contributions and joint collection concepts linked to temporary employment regulation proceedings, in line with the similar measures already adopted previously with respect to such proceedings in Royal Decree-Law 8/2020, of March 17, Royal Decree-Law 18/2020, of May 12, on social measures in defense of employment, Royal Decree-Law 24/2020, of June 26, and Royal Decree-Law 30/2020, of September 29, provided that all of them automatically extend such temporary labor force adjustment plans, which may last until May 31, 2021, and that such companies belong to sectors with a high rate of coverage by temporary labor force adjustment plans and a low rate of recovery of activity, whose activity is classified in any of the codes of the National Classification of Economic Activities -CNAE-09- included in the Annex to this Royal Decree-Law.

EXTENSION OF THE VALIDITY OF ARTICLE 6 OF ROYAL DECREE-LAW 8/2020, OF MARCH 17, ON EXTRAORDINARY URGENT MEASURES TO FACE THE ECONOMIC AND SOCIAL IMPACT OF COVID-19. Third additional provision.

Article 6 of Royal Decree-Law 8/2020, of March 17, which regulates the MECUIDA Plan, is extended until May 31, 2021.

MINIMUM CONTRIBUTION BASES DURING THE YEAR 2021. Fifth additional provision.

The minimum contribution bases in force as of December 31, 2019 are maintained, as long as the increase in the minimum interprofessional wage for the year 2021 is not carried out.

ACTIVITY FOR SELF-EMPLOYED WORKERS AFFECTED BY A TEMPORARY SUSPENSION OF ALL ACTIVITY AS A RESULT OF RESOLUTION OF THE COMPETENT AUTHORITY AS A MEASURE OF CONTAINMENT OF THE SPREAD OF THE COVID-19 VIRUS REFERRED TO IN PARAGRAPH 1 OF ARTICLE 13 OF ROYAL DECREE-LAW 30/2020, OF SEPTEMBER 29, OF SOCIAL MEASURES IN DEFENSE OF EMPLOYMENT. Second transitory provision

The second transitory provision contemplates the extension of the extraordinary cessation of activity benefit for self-employed workers affected by a temporary suspension of all activity as a result of a resolution of the competent authority as a measure to contain the spread of the COVID-19 virus contemplated in paragraph 1 of Article 13 of Royal Decree-Law 30/2020, of September 29.

SUSPENSION OF THE APPLICATION OF THE APPLICABLE CONTRIBUTION RATE FOR PROFESSIONAL CONTINGENCIES AND FOR TERMINATION OF ACTIVITY OF SELF-EMPLOYED WORKERS INCLUDED IN THE SPECIAL SOCIAL SECURITY REGIME FOR SELF-EMPLOYED WORKERS AND IN THE SPECIAL SOCIAL SECURITY REGIME FOR SEAFARERS. Fourth Transitional Provision.

The rate increase provided for in the second transitory provision of Royal Decree Law 28/2018, of December 28, for the revaluation of public pensions and other urgent measures in social, labor and employment matters is suspended, so that the contribution rates applicable for professional contingencies and for termination of activity of self-employed workers included in the Special Social Security Scheme for Self-Employed or Self-Employed Workers and in the Special Social Security Scheme for Sea Workers will be those in force as of December 31, 2020.

REPEAL OF REGULATIONS. Sole repealing provision

Any provisions of equal or lower rank that oppose the provisions of this Royal Decree-Law are hereby repealed and, expressly:

The sixteenth additional provision of Royal Decree-Law 11/2020, of March 31, adopting additional urgent measures in the social and economic fields to address COVID-19.
The provisions of Article 13 and Article 14 and the fourth additional provision of Royal Decree-Law 30/2020, of September 29, on social measures in defense of employment. The sole repealing provision includes a generic clause of repeal of regulations while establishing the express repeal of the sixteenth additional provision of Royal Decree-Law 11/2020, of March 31, adopting urgent complementary measures in the social and economic field to face the COVID-19 and articles 13 and 14 and the fourth additional provision of Royal Decree-Law 30/2020, of September 29.

MODIFICATION OF THE REVISED TEXT OF THE LAW ON INFRACTIONS AND SANCTIONS IN THE SOCIAL ORDER, APPROVED BY ROYAL LEGISLATIVE DECREE 5/2000, OF AUGUST 4, 2000. Fourth final provision.

Paragraph a) of article 53.1 (Contents of the minutes and of the documents initiating the file) is reworded to read as follows:

«a) The facts ascertained by the acting Labor and Social Security Inspector or Sub-Inspector of Employment and Social Security, which motivated the report, highlighting those relevant to the determination and classification of the infraction and the graduation of the sanction.

In the case of reports issued in the framework of automated administrative proceedings, the facts constituting the infringement committed”.