Royal Decree-Law 10/2020 regulating recoverable paid leave for non-essential employees to reduce mobility during COVID-19

I. GENERAL PROVISIONS HEAD OF STATE 4166 Royal Decree-Law 10/2020, of March 29, regulating a recoverable paid leave for employees who do not provide essential services, with the aim of reducing population mobility in the context of the fight against COVID-19.

I Royal Decree 463/2020, of March 14, declaring the state of alarm to manage the health crisis situation caused by COVID-19, adopted a series of measures regarding the limitation of people's mobility, as well as social and economic activities in our country, which have contributed to containing the spread of COVID-19.

Since then, the Government has agreed, through various normative instruments, different initiatives aimed at ordering the application of measures deemed necessary to protect people from the risk of infection, to attend to those who are especially vulnerable, to guarantee the provision of essential health and social services, as well as to look after companies and workers who are affected economically and productively, so that they can recover normality as soon as the exceptional circumstances that have paralyzed a large part of the productive, assistance, and service fabric in our country are removed.

All these measures, particularly those that have impacted the limitation of people's mobility, have contributed to containing the spread of COVID-19. Teleworking, corporate flexibility measures, and the rest of the economic and social measures adopted in recent weeks are simultaneously allowing the negative impact on the business fabric and employment to be minimized.

However, despite the impact that these social distancing measures are having to favor the control of the epidemic, the total number of infected people and victims of COVID-19 who are admitted to Intensive Care Units, sometimes for relatively long periods, with an effect of patient accumulation, has continued to grow, causing increasing pressure on the National Health System and, in particular, on assistance services.

Therefore, taking into account the recommendations of experts in the epidemiological field, it is necessary to adopt new measures that deepen the control of the virus's spread and prevent the accumulation of patients in Intensive Care Units from leading to their saturation.

II Taking into account that work and professional activity is the cause that explains most of the displacements that currently occur in our country, the need has been manifested to adopt a measure in the labor field that allows articulating the aforementioned limitation of movements and reducing it to levels that will allow achieving the desired effect.

The priority of the regulation contained in this law is, therefore, to limit mobility to the maximum. And the sectors of activity whose workers are excluded from the mandatory enjoyment of the leave are justified by strict reasons of necessity.

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III This royal decree-law regulates a recoverable paid leave for wage-earning personnel, of an obligatory nature and limited in time between March 30 and April 9 (both inclusive), for all wage-earning personnel who provide services in companies or entities of the public or private sector that carry out non-essential activities classified as such in the annex.

Workers whose contracts are suspended during the indicated period and those who can continue to provide services remotely are exempt from the application of this royal decree.

The competent delegated authorities, within their area of competence, may modify or specify, through necessary orders, the activities affected by the recoverable paid leave provided for in this article and its effects.

In the transitional provisions, punctual and limited exceptions are established for (i) those activities that could be adversely affected in an irremediable or disproportionate manner by the leave established in this royal decree-law and (ii) transport activity personnel who are performing a service on the date of entry into force of this royal decree-law.

For its part, specific provisions are established in the additional provisions for public employees and personnel with their own specific legislation, essential services of the Administration of Justice, and other groups.

IV Article 86 of the Constitution allows the Government to issue royal decree-laws "in cases of extraordinary and urgent need," provided that they do not affect the ordering of the basic institutions of the State, the rights, duties, and freedoms of citizens regulated in Title I of the Constitution, the regime of the Autonomous Communities, nor general electoral law.

The royal decree-law constitutes a constitutionally lawful instrument, provided that, as our Constitutional Court has repeatedly required (judgments 6/1983, of February 4, F. 5; 11/2002, of January 17, F. 4, 137/2003, of July 3, F. 3, and 189/2005, of July 7, F. 3; 68/2007, F. 10, and 137/2011, F. 7), the purpose justifying urgent legislation is to address a concrete situation, within governmental objectives, which for reasons difficult to foresee requires immediate normative action in a timeframe shorter than that required by the normal route or by the urgency procedure for the parliamentary processing of laws, especially when the determination of said procedure does not depend on the Government.

Likewise, the extraordinary and urgent need to approve the measures included in this royal decree-law falls within the political judgment or opportunity that corresponds to the Government (STC 61/2018, of June 7, FJ 4; 142/2014, of September 11, FJ 3) and this decision, undoubtedly, involves an ordering of political priorities of action (STC, of January 30, 2019, Unconstitutionality Appeal no. 2208-2019), and are labor measures aimed at repairing the economic and employment damages derived from the COVID-19 crisis, as well as protecting employment and maintaining economic activity. The opportunity motives just exposed demonstrate that, in no case, this royal decree-law constitutes a case of abusive or arbitrary use of this constitutional instrument (STC 61/2018, of June 7, FJ 4; 100/2012, of May 8, FJ 8; 237/2012, of December 13, FJ 4; 39/2013, of February 14, FJ 5).

In sum, the circumstances of extraordinary and urgent need provided for in Article 86 of the Constitution concur in the measures adopted in this royal decree-law, considering, on the other hand, that the objectives sought to be achieved with it cannot be achieved through the processing of a law by the urgency procedure.

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Likewise, it should be noted that this royal decree-law does not affect the ordering of the basic institutions of the State, the rights, duties, and freedoms of citizens regulated in Title I of the Spanish Constitution, the regime of the Autonomous Communities, nor general electoral law.

V This royal decree-law responds to the principles of necessity, efficacy, proportionality, legal certainty, transparency, and efficiency, as required by Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations. To this end, it demonstrates compliance with the principles of necessity and efficacy given the general interest on which the established measures are based, the royal decree-law being the most suitable instrument to guarantee their achievement. Thus, it responds to the need to minimize the risk of an uncontrolled and irreversible impact of the extraordinary emergency situation resulting from the health alert declared due to COVID-19, both in economic activity and in the maintenance and safeguarding of employment, thereby avoiding situations of lack of protection and guaranteeing the restoration and recovery of economic activity.

Likewise, it is proportional, as it regulates the essential aspects to achieve its objective, limiting its effects to the concurrence of the described temporary and extraordinary situation. Likewise, it complies with the principle of legal certainty, being coherent with the rest of the legal system.

Likewise, it also complies with the principle of transparency, as it clearly identifies its purpose and provides an explanation, without the public participation procedures established in Article 26 of Law 50/1997, on the Government, having been carried out under the exception, for royal decree-laws, regulated in paragraph 11 of the aforementioned provision. Finally, regarding the principle of efficiency, this royal decree-law does not impose any additional administrative burden on those existing previously.

In virtue thereof, making use of the authorization contained in Article 86 of the Spanish Constitution, at the proposal of the Minister of Work and Social Economy, and after deliberation of the Council of Ministers, in its meeting on March 29, 2020.

I HEREBY ORDER:

Article 1. Subject scope of application.

1. This royal decree-law shall apply to all wage-earning personnel who provide services in companies or entities of the public or private sector and whose activity has not been paralyzed as a result of the declaration of the state of alarm established by Royal Decree 463/2020, of March 14.
2. Nevertheless, the following are exempt from the scope of application: a) Workers who provide services in sectors classified as essential in the annex of this royal decree-law. b) Workers who provide services in divisions or production lines whose activity corresponds to sectors classified as essential in the annex of this royal decree-law. c) Workers contracted by (i) those companies that have requested or are applying a temporary regulation file for suspension and (ii) those to which a temporary regulation file for suspension is authorized during the validity of the leave provided for in this royal decree-law. d) Workers who are on leave due to temporary incapacity or whose contract is suspended for other legally provided causes.

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e) Workers who can continue to perform their activity normally through teleworking or any of the non-presidential modalities of service provision.

Article 2. Paid leave.

1. Workers who fall within the scope of application of this royal decree-law will enjoy a recoverable paid leave, of an obligatory nature, between March 30 and April 9, 2020, both inclusive.
2. This leave will entail that workers will retain the right to remuneration that would have corresponded to them had they been providing services on an ordinary basis, including base salary and salary supplements.

Article 3. Recovery of working hours not provided during the paid leave.

1. The recovery of working hours may be made effective from the day following the end of the state of alarm until December 31, 2020.
2. This recovery must be negotiated in a consultation period opened for this purpose between the company and the legal representation of the workers, which will have a maximum duration of seven days.

In the event that there is no legal representation of the workers, the representative commission for the negotiation of the consultation period will be integrated by the most representative and representative unions of the sector to which the company belongs and with standing to be part of the negotiating commission of the applicable collective agreement. The commission will be composed of one person for each union that meets these requirements, with decisions taken by the corresponding representative majorities. In the event that this representation is not formed, the commission will be integrated by three workers from the company itself, elected in accordance with what is collected in Article 41.4 of Royal Legislative Decree 2/2015, of October 23, approving the consolidated text of the Workers' Statute Law.

In any of the aforementioned cases, the representative commission must be constituted within the unextendable period of five days.

During the consultation period, the parties must negotiate in good faith, with a view to achieving an agreement. Such agreement will require the conformity of the majority of the persons who make up the legal representation of the workers or, in its case, the majority of the members of the representative commission, provided that, in both cases, they represent the majority of the persons who have been affected by this extraordinary leave.

The parties may agree at any time to replace the consultation period with the mediation or arbitration procedures provided for in interprofessional agreements at the state or autonomous level referred to in Article 83 of the Workers' Statute Law.

The agreement reached may regulate the recovery of all or part of the working hours during the leave regulated in this article, the minimum notice with which the worker must know the day and time of the resulting work provision, as well as the reference period for the recovery of undeveloped work time.

If no agreement is reached during this consultation period, the company will notify the workers and the representative commission, within seven days from the end thereof, of the decision regarding the recovery of the working hours not provided during the application of this leave.

3. In any case, the recovery of these hours cannot imply the non-compliance with the minimum daily and weekly rest periods provided for by law and the collective agreement, the establishment of a notice period lower than that collected in Article 34.2 of the Workers' Statute Law, nor the exceeding of the maximum annual working day provided for in the applicable collective agreement. Likewise, the rights to work-life balance recognized legally and conventionally must be respected.

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Article 4. Minimum indispensable activity. Companies that must apply the recoverable paid leave regulated in this article may, if necessary, establish the minimum staff number or work shifts strictly indispensable in order to maintain indispensable activity. This activity and this minimum staff or shifts will have as a reference the one maintained on an ordinary weekend or on holidays.

Article 5. Adaptation of activities. The Minister of Health, in his capacity as the competent delegated authority, may modify or specify, through necessary orders, the activities affected by the recoverable paid leave provided for in this article and its effects.

First Transitional Provision. Guarantees for the resumption of business activity. In those cases where it is impossible to immediately interrupt the activity, workers included in the subjective scope of this royal decree-law may provide services on Monday, March 30, 2020, with the sole purpose of carrying out the indispensable tasks to make the recoverable paid leave effective without adversely or disproportionately affecting the resumption of business activity.

Second Transitional Provision. Continuity of transport services. Those workers in the transport sector who are performing a service not included in this royal decree-law at the moment of its entry into force will begin the recoverable paid leave once the ongoing service is finished, including as part of the service, if applicable, the corresponding return operation.

First Additional Provision. Public employees. The Ministry of Territorial Policy and Public Function and those competent in the autonomous communities and local entities are authorized to issue the instructions and resolutions that are necessary to regulate the provision of services of public employees included in the scope of application of Royal Legislative Decree 5/2015, of October 30, approving the consolidated text of the Basic Law of the Public Employee, with the object of maintaining the functioning of public services considered essential.

Second Additional Provision. Personnel with their own specific legislation.

1. Regarding the personnel included in Article 4 of Royal Legislative Decree 5/2015, of October 30, approving the consolidated text of the Basic Law of the Public Employee, the necessary instructions and resolutions will be issued to determine the applicable legal regime both with regard to the essential nature of their services and to the concrete organization of them.
2. The instructions and resolutions referred to in the first paragraph will be issued, in their respective scopes, by the competent authorities of the Cortes Generales, of the other Constitutional Organs of the State, by the Ministry of Defense, by the Ministry of the Interior, by the Ministry of Justice, by the National Intelligence Center, and by the Bank of Spain and the Deposit Guarantee Fund.

Third Additional Provision. Essential services in the Administration of Justice. Judges, prosecutors, lawyers of the Administration of Justice, and other personnel at its service will continue to attend to procedural actions not suspended by Royal Decree 463/2020, of March 14, declaring the state of alarm to manage the health crisis situation caused by COVID-19, and, in this way, they will comply with the essential services fixed by consensus by the Ministry of Justice, the General Council of the Judiciary, the Attorney General's Office of the State, and the autonomous communities with competence in the matter, and embodied in the Resolution of the Secretary of State for Justice of March 14, 2020, with the adaptations that may be necessary in view of what is provided in this Royal Decree-Law. Likewise, personnel of the Administration of Justice necessary for the provision of essential services of the Civil Registry will continue to provide services in accordance with the Instructions of the Ministry of Justice.

Fourth Additional Provision. Continuation of activity. Activities not included in the annex that have been subject to contracting through the procedure established in Article 120 of Law 9/2017, of November 8, on Public Sector Contracts, may continue.

Fifth Additional Provision. Personnel of companies awarded public sector contracts. The recoverable paid leave regulated in this royal decree-law will not apply to workers of companies awarded contracts for works, services, and supplies of the public sector that are indispensable for the maintenance and security of buildings and the adequate provision of public services, including the provision of the same in a non-presidential manner, all without prejudice to what is established in Article 34 of Royal Decree-Law 8/2020, of March 17, on urgent extraordinary measures to face the economic and social impact of COVID-19.

Final Single Provision. Entry into force. This royal decree-law will enter into force on the same day of its publication in the "Official State Gazette".

Given in Madrid, on March 29, 2020.

FELIPE R. The President of the Government, PEDRO SÁNCHEZ PÉREZ-CASTEJÓN

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ANNEX The paid leave regulated in this royal decree-law will not apply to the following wage-earning personnel:

1. Those who carry out the activities that must continue to be developed under the articles 10.1, 10.4, 14.4, 16, 17, and 18, of Royal Decree 463/2020, of March 14, declaring the state of alarm to manage the health crisis situation caused by COVID-19, and of the regulations approved by the Competent Authority and the Delegated Competent Authorities.

2. Those who work in activities that participate in the supply chain of the market and in the functioning of the services of the centers of production of goods and services of first necessity, including food, beverages, animal feed, hygiene products, medicines, sanitary products, or any product necessary for the protection of health, allowing the distribution of the same from the origin to the final destination.

3. Those who provide services in the hospitality and catering activities that provide home delivery services.

4. Those who provide services in the production and distribution chain of goods, services, health technology, medical material, protection equipment, sanitary and hospital equipment, and any other materials necessary for the provision of health services.

5. Those indispensable for the maintenance of the productive activities of the manufacturing industry that offer the supplies, equipment, and materials necessary for the correct development of the essential activities collected in this annex.

6. Those who perform transport services, both of people and of goods, that continue to be developed from the declaration of the state of alarm, as well as those that must ensure the maintenance of the means employed for this purpose, under the regulations approved by the competent authority and the delegated competent authorities from the...