The «Return to ERTE»
Companies that are being affected by the outbreaks of COVID-19 and the tightening of some administrative measures and restrictions could consider the application of a temporary employment regulation file that allows them to survive the second wave of the pandemic.
The companies have not had their August in 2020. The macroeconomic data offered by the different official organisms , certify an extraordinary contraction of the activity. To this is added that the regulatory machinery of the different autonomous communities generates, on a daily basis, new limitations to business activity. Gone is the idea of a calm and gradual de-escalation. On a daily basis, the number of restrictions on the activity of companies increases, so it could be time to apply new solutions to deal with this situation.
The de-escalation began, in employment terms, on June 26 with the publication of Royal Decree-Law 24/2020 , of June 26, on social measures to reactivate employment and protect self-employment and competitiveness in the industrial sector. This is the rule that established the new applicable legal regime, once the worst part of the health emergency caused by COVID-19 had been overcome, and it recognized that the crisis would still have effects on companies.
This standard, in addition to certifying the end of temporary employment regulation files due to force majeure based on COVID-19 (ERTE COVID), favored the use of ERTE for economic, technical, organizational and / or production reasons (ERTE ETOP) and created, through an additional provision, a new type of ERTE to face the new possible sanitary restrictions. These new files were baptized by the Council of Ministers as ERTE for ” regrowth “, allowing companies that access this measure to benefit from an exemption of Social Security contributions, in the business contribution, of between 80% and 60% depending on the size of the staff.
Since June 26, 2020, the de-escalation process has not stopped generating constant, and new, sanitary restrictions. The social containment caused by the measures periodically adopted by the autonomous communities, has in many cases caused real limitations and restrictions on business activity. And it is these restrictions that, meeting certain requirements, could justify the application of an ERTE for “regrowth”.
Based on the above, there are up to four files that companies could apply in this “return to ERTE”. On the one hand, the labor regulations in force after the 2012 reform are still applicable. The classic ERTEs persist due to force majeure for those situations that can be classified as such. Logically, these will no longer have the agility, nor the advantages, of those requested before the entry into force of Royal Decree-Law 24/2020.
Secondly, the employer may go to the ERTE ETOP when there are economic, technical, organizational and / or productive causes that justify the adoption of a temporary measure of suspension or reduction of working hours on their staff. These ERTEs, in addition, can enjoy a similar exemption regime to that applied to force majeure when they start after the end of these. Third, the employer can go to the new ERTE for “regrowth” when the aforementioned new sanitary restrictions occur. Finally, it is also possible to opt for the pre-existing COVID ERTE and overcome with it the adversities derived from the pandemic, relying on the measure that has been applied since March 2020 and that it may be extended for several more months.
With this expedient poker there are formulas to help overcome the difficulties posed by this month of September, and those to come. If the pandemic has allowed activity to be reactivated and there is part of the workforce already affected in an ERTE COVID and with part of it rescued, and there are no signs that announce a next decline in activity, perhaps the most prudent thing is to stay in the authorized measure, keeping an eye on the more than likely ERTE ETOP that will be applied in the near future, if the current regulations are not extended. This ERTE ETOP will be the best solution for companies that do not have one of force majeure and present a short-term reduction in their activity, since it allows them to enjoy a greater horizon to make business activity more flexible.
But if the business situation is more unpredictable or is more affected by the sanitary restrictions approved by the autonomous communities, the solution could be found in the ERTE by “regrowth”.
Recently it has been possible to know the administrative criteria of various labor authorities regarding these ERTE, for example from the Valencian Community or the Balearic Islands . In both cases, it is argued that companies may resort to this figure whether they have a prior ERTE in force, or if they have renounced it, provided that they have had to undertake the closure of a work center and said decision brings cause of restrictions or pandemic containment measures.
Unlike the ERTE COVID, the ERTE for “regrowth” have a procedure in which the hearing of the legal representation of the workers and the mandatory report of the Labor and Social Security Inspection is foreseen. Therefore, access to improved exemptions of 80% and 60% necessarily requires forgetting the automatic mechanisms of the previous legislation. That is, they require extensive technical work, since it is necessary to convince, defend and prove that the orderly closure has been due to these new restrictions, and that it is not due to the previous effects of the pandemic or to short-term business difficulties. typical of the sector.
In short, all business situations could have an answer to overcome the next few months, although they require proper management and planning to be successful. For this reason, it is convenient to review the steps taken since March and verify if the strategy for the coming weeks or months requires a “return to the ERTE”.