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20-07-2021

The new extension of the ERTE

The norm regulates the new figures of ERTE by impediment and ERTE by limitations. Other provisions are maintained, such as the limits related to the distribution of dividends, the commitment to safeguard employment or the misnamed ban on firing, which will remain in force until January 31, 2021.

Given the imminent loss of validity of the ERTE due to force majeure, Royal Decree-Law 30/2020, of September 29, on social measures in defense of employment has been approved , which allows current employment regulation files , based on this cause provided for in article 22 of Royal Decree-Law 8/2020, of March 17, are automatically extended until January 31, 2021.

Second, this royal decree-law regulates the so-called ERTE due to impediment or limitations of activity , recognizing a series of exemptions for those companies that, belonging to any sector, are prevented from carrying out their activity as a result of new restrictions or measures of sanitary containment that can be adopted, as of October 1, by Spanish or foreign authorities, provided that they previously obtain authorization from an ERTE due to force majeure, the duration of which will be restricted to that of the new impediment measures.

These exemptions will reach 100% of the business contribution during the closing period until January 31, 2021, in the case of companies with less than 50 workers on February 29, 2020, and 90% in the case of companies with 50 or more workers.

Thirdly, the rule refers to ERTE of force majeure due to limitations , applicable to those companies in any sector that see the development of their activity limited as a result of decisions or measures adopted by the Spanish authorities that, prior authorization of this file , the following exemption percentages may apply:

  • In companies with less than 50 workers, the exemption will be 100%, 90%, 85% and 80% correlatively for the months of October, November, December 2020 and January 2021.
  • In companies with 50 or more workers, the exemption will be 90%, 80%, 75% and 70% correlatively for the same period.

These exemptions will be applied at the request of the company, which must present a responsible declaration. In the event of resignation from the ERTE, which must be communicated to the General Treasury of Social Security and the labor authority, the exemptions will cease to apply from the effective date of said resignation.

On the other hand, these exemptions in the contribution have no effect for the workers, since the consideration of these periods as effectively listed is maintained.

Regarding ERTE for economic, technical, organizational and / or productive reasons linked to COVID-19 – the so-called ERTE for ETOP causes -, which begin with the entry into force of the standard and until January 31, 2021, Article 23 of Royal Decree-Law 8/2020, of March 17, will continue to apply to them. The processing of the same may begin while an ERTE is in force due to force majeure.

In addition, those files in force that end during the entry into force of this rule, may be extended as long as an agreement is reached in the consultation period.

Likewise, some of the limits and prohibitions provided in the preceding regulations are maintained:

  • The limits related to the distribution of dividends will continue to apply.
  • The employment safeguard is maintained with the same terms. However, those companies that receive exemptions in accordance with this rule will be committed to a new 6-month employment safeguard period.
  • Likewise, the provision that does not consider force majeure and the objective causes that protect the ERTE (commonly known as ” prohibition to dismiss “) and the interruption of the calculation of contracts will remain in force until January 31, 2021. temporary affected by a suspension of the contract.
  • In turn, the general prohibition of working overtime, establishing new outsourcing or arranging new contracts, direct or indirect, during the application of the ERTE regulated in this standard is maintained.

The unemployment protection measures will be applicable until January 31, 2021 even if the worker lacks the required minimum contribution period, and until December 31 for permanent discontinuous workers. Companies must formulate a new collective application for unemployment benefits and communicate any disaffections that take place, as well as the resignation, where appropriate, of the file. On the other hand, the circumstances in which the maximum periods of the benefit will not be consumed are regulated.

Finally, an additional provision is included that regulates quota exemptions and companies belonging to sectors with a high coverage rate and a low activity recovery rate are considered those that have ERTE automatically extended until January 31, 2021 whose activity is classified in one of the CNAE provided for in the annex to the standard. The companies that have ERTE automatically extended until January 31, 2021, whose business depends, indirectly and for the most part, on the companies mentioned above or that are part of the value chain of these (companies whose turnover, during 2019, has been generated, at least, by 50%,in operations carried out directly with those included in any of the CNAE referred to in the annex, as well as those whose actual activity indirectly depends on that effectively carried out by the companies included in said CNAE).