Royal Decree-Law 29/2020 of 29 September on urgent measures regarding telework in Public Administrations and human resources in the National Health System to address the COVID-19 health crisis

OFFICIAL STATE BULLETIN No. 259 Wednesday, September 30, 2020 Sec. I. Page 82159 I. GENERAL PROVISIONS HEAD OF STATE 11415 Royal Decree-Law 29/2020, of September 29, on urgent measures regarding telework in Public Administrations and human resources in the National Health System to address the health crisis caused by COVID-19. I The health crisis situation caused by COVID-19 has forced, during these last months, the different Public Administrations to dedicate all their personnel and material resources to guarantee their functioning, the provision of public services by their employees in a non-presential manner, and the exercise of the rights of citizens and companies. The measures contained in this regulation aim to ensure the normal functioning of Public Administrations, promoting new forms of organization and structuring of work for public employees for the better service of the general interests entrusted to them. Therefore, it is unavoidable to address, on an immediate basis, the basic regulation of telework in Public Administrations and their adaptation to digital administration. On the other hand, the unpredictability, magnitude, and impact of this health crisis oblige us to undertake a series of exceptional measures in the field of human resources with the objective of strengthening the National Health System throughout the national territory, expanding the possibilities of hiring professionals by the autonomous communities. These are measures to reinforce a National Health System that is currently subjected to a significant overload and care pressure, so its approval is urgent and indispensable. II Telework, understood as a preferential modality of remote work carried out outside the usual establishments and centers of the Administration, for the provision of services through the use of new technologies, has been the subject of regulation both in the European context and at the national, regional, and local levels. In the community context, the European Trade Union Confederation (ETUC), the Union of Industrial and Employers' Confederations of Europe (UNICE), the European Association of Craft, Small and Medium-Sized Enterprises (UEAPME), and the European Centre of Enterprises with Public Participation (CEEP) signed, as early as 2002, the European Framework Agreement on Telework, subscribed to by European social partners in July 2002 and revised in 2009, in order to provide greater security to persons covered by telework for hire in the European Union. This agreement started from the conception of telework as a means to modernize the organization of work for companies and organizations providing public services, as well as to give greater autonomy to workers in the performance of their tasks. Following the path opened by this European Framework Agreement on Telework and seeing what has been experienced in the private sector, various regulatory norms governing this remote work modality began to be approved by different Public Administrations. With regard to the state scope, the first provisions regarding telework were introduced by Order APU/1981/2006, of June 21, promoting the implementation of pilot telework programs in ministerial departments. Subsequently, the Manual for the implementation of pilot telework programs in the General State Administration was published, whose main objective was to serve as a guide for the various ministerial departments and public bodies when designing and implementing their pilot telework programs. A year later, the approval of Law 11/2007, of June 22, on citizens' electronic access to public services, already repealed, included in its final provision sixth a authorization for the regulation of telework in the General State Administration. Subsequently, in the Government-Trade Unions Agreement of September 25, 2009, in section 1.1 regarding "Modernization and new technologies," as a development of the general measure aimed at "Promoting good administration, quality, and efficiency of public services," two provisions on this matter were included: one referring to the set of Public Administrations and the other to the General State Administration. For its part, the II Plan for Equality between women and men in the General State Administration and its public bodies, approved by the Council of Ministers Agreement of November 20, 2015, provides in its axis 4 the promotion of the inclusion of transversal measures for the entire General State Administration with respect to working time, work-life balance, and co-responsibility of personal, family, and work life. In particular and as a measure to achieve this objective, the "development of experiences of network work and through the use of new technologies, within the scope of the General State Administration and its public bodies, will be carried out, with the aim of favoring work-life balance and a better organization and rationalization of working time." It is also worth highlighting that in Organic Law 3/2018, of December 5, on the Protection of Personal Data and guarantee of digital rights, a set of rights related to the use of digital devices in the workplace is regulated in accordance with the mandate contained in article 18.4 of the Spanish Constitution and collecting national, community, and international jurisprudence, such as digital rights in collective bargaining, the right to privacy and use of digital devices in the workplace, and the right to digital disconnection. As for the regional and local scope, after the initial pilot programs, the regulation of telework for the provision of services in their scopes was promoted from 2012 onwards. However, the implementation and effective use of telework in Public Administrations has not, in practice, been majority until recent dates. Its introduction in the public sector was truly accelerated from March of this year, given the extreme and exceptional organizational and functional circumstances to which the epidemiological crisis caused by COVID-19 led all Public Administrations. The urgency and exceptional nature of the situation required the implementation of temporary solutions, both for administrations that had regulation on this matter, and especially for those that lacked it, with the aim of combining the necessary continuity of administrative activity with compliance with the sanitary containment measures in force in the context of the pandemic emergency. Thus, within the framework and scope of the state of alarm decreed by Royal Decree 463/2020, of March 14, declaring the state of alarm for the management of the health crisis situation caused by COVID-19, norms were approved which implemented telework in a generalized manner in the different Public Administrations, albeit on an exceptional and temporary basis. From the beginning of May, already in a context of greater control of the pandemic, the implementation of the Plan for the Transition towards a New Normality leads to the progressive de-escalation and the adaptation of the entire society to this new situation. In this sense, the use of telework offers important advantages with the potential to reduce the spread of COVID-19, by enabling the use of technological means to perform tasks remotely or virtually, without the need for physical presence in the premises during the working day. The epidemiological crisis has shown telework as the most effective organizational instrument to maintain activity and the provision of public services, while guaranteeing prevention against contagion. During the health crisis, not only has the trend towards the normalization of telework, which was already anticipated prior to it, been reinforced, but its use has even come to be configured as preferential, as was done in article five of Royal Decree-Law 8/2020, of March 17, on urgent extraordinary measures to address the economic and social impact of COVID-19. In this way, information and communication technologies have constituted a key tool to reduce the impact of containment measures and restrictions on the work of public employees in the context of uncertainty, while laying the foundations for a flexible form of organization of service provision adaptable to any circumstances that may arise in the future. The consolidated text of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of October 30, is the most appropriate regulatory instrument for the introduction of rules that serve as a common basis for the development of the figure in all Public Administrations, as it is a basic norm that establishes the general principles applicable to the entire set of public employment relationships and contains the common elements to the entire civil service personnel of all Public Administrations, as well as the specific legal norms applicable to labor personnel at their service. The figure of telework, beyond the current urgent organizational need, constitutes an opportunity to introduce changes in the forms of work organization that will result in the improvement of the provision of public services, in the well-being of public employees, in the sustainable development objectives of Agenda 2030, and in a more open and participatory administration. It implies the promotion of the use of new information technologies and the development of digital administration, with the corresponding advantages for public employees, as well as for the administration and society in general. III The provision of service at a distance through telework is regulated on a basic level, thus promoting the use of new information technologies and the development of digital administration with the corresponding advantages for public employees, as well as for the administration and society in general. Among others, the reduction of commuting time, environmental sustainability, or the improvement of the balance between professional development and personal and family life can be highlighted, always respecting the principles of transparency, equality between women and men, and co-responsibility, and maintaining the corresponding rights, such as the right to privacy or digital disconnection, and paying special attention to duties regarding confidentiality and data protection. Furthermore, telework cannot imply any breach of the working hours and schedule applicable in each case and of the regulations on the protection of personal data. A prior requirement will be the assessment of the suitability of the tasks assigned to the position to be carried out through telework, the corresponding preventive evaluation and planning, as well as training in the necessary digital competencies for the provision of the service. In any case, the provision of service at a distance through the modality of telework will not be considered as ordinary. The diverse nature of the services to citizens that the different Public Administrations have entrusted to them, and in order to guarantee their provision, makes it necessary to determine that the provision of services in the telework modality cannot be absolute. It will be in each scope and in the regulatory norm issued for this purpose by each competent administration where the percentage of service provision that can be developed through this new modality is determined, in such a way that presentiality and telework are combined in the regime established. Direct presential attention to citizens is guaranteed in any case. IV The object is, therefore, to configure a basic regulatory framework, both from the perspective of the legal regime of Public Administrations, and from the more specific point of view of the rights and duties of public employees, sufficient for all Public Administrations to develop their own regulatory instruments regulating telework in their Public Administrations, in exercise of their powers of self-organization and also considering the state competence on labor legislation in the case of labor personnel. In the meeting of the Sectoral Conference on Public Administration of June 11 last, it was agreed to elaborate a proposal for the reform of the consolidated text of the Basic Statute of the Public Employee, for which purpose several meetings of the Public Employment Coordination Commission were held. The resulting proposal was also the subject of negotiation with social agents, informed by the Sectoral Conference on Public Administration in its meeting of September 21, 2020, and ratified subsequently by agreement of the General Negotiating Table of Public Administrations, whose object of negotiation are the labor working conditions that are susceptible of state regulation as a basic norm, without prejudice to the agreements that the autonomous communities may reach in their corresponding territorial scope by virtue of their exclusive and shared competencies in the matter of Public Function. The wording contained in this royal decree-law is the result of fluid dialogue between the different Public Administrations and trade union organizations, an example of co-governance in a multi-level public administration. This royal decree-law introduces a new article 47 bis in the consolidated text of the Law of the Basic Statute of the Public Employee, in chapter V of title III, relating to the working day, permits, and vacations. Telework is defined, first of all, as that modality of provision of remote services in which the competential content of the job position can be developed, provided that the needs of the service allow it, outside the dependencies of the Administration, through the use of information and communication technologies. It is expressly established that, in any case, telework must contribute to a better organization of work through the identification of objectives and the evaluation of their compliance. As it is the regulation of a modality of work and structural flexibility of organization for Public Administrations, it must serve for the better achievement of the administration's objectives in its service to the general interests. As such, without prejudice to its voluntariness, its use must be subordinated to guaranteeing the provision of public services and, in any case, the fulfillment of the needs of the service must be ensured. In this sense, it is also established that the provision of service through this work modality must be expressly authorized, through objective criteria for access, and will be compatible with the presential modality, which will continue to be the ordinary work modality. Personnel who provide services through this modality will have the same duties and rights as the rest of public employees, and the administration must provide and maintain the necessary technological means for the activity. In any case, the concrete performance of the activity through telework will be carried out under the terms of the norms of each Public Administration, being subject to collective negotiation in each scope. Public Administrations that must adapt their telework regulations to what is provided in this royal decree-law will have a period of six months from the entry into force thereof. On the other hand, this royal decree-law in its article 2 introduces the possibility that autonomous communities and the National Institute of Health Management can hire persons who, having the corresponding degree, bachelor's degree, or diploma, lack the title of Specialist recognized in Spain, to perform functions typical of a specialty, in two cases. First, in the case of health professionals who have taken the selective tests for specialized health training of the 2019/2020 call and who, having passed the minimum score in the exercise, have not been awarded a position. Second, in the case of health professionals who hold a Specialist title obtained in a State not a member of the European Union, provided that the Evaluation Committee has issued the report-proposal regulated in article 8.b), c), or d) of Royal Decree 459/2010, of April 16. On the other hand, in article 3, the provision of services of statutory, labor, and civil service medical and nursing personnel as a consequence of the pandemic caused by COVID-19 is regulated on an exceptional and transitory basis, attending to those units with a deficit of professionals as long as assistance to their units of origin is guaranteed. Thus, it is intended to allow the assignment of personnel within the same hospital center, from a hospital center to primary care centers in its area, from this type of centers to hospitals and field hospitals, and among other centers, services, institutions, or public health establishments, in order to have as many professionals as possible. This provision also regulates the possibility that autonomous communities can assign their civil service personnel from bodies or categories for which the title of Bachelor's Degree, Degree, or Diploma in Medicine or Nursing was required for entry to other care devices, under the same conditions as the previous cases. Likewise, the royal decree-law modifies article 22 of Law 44/2003, of November 21, establishing the possibility that persons who participate in the selective tests for Specialized Health Training are obligatorily related through electronic means, when so provided in the corresponding annual call and under the terms established therein. This possibility is enabled, under the auspices of article 12 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, both due to the characteristics of the group to which the call is directed, as well as due to the current pandemic situation. Thus, the persons who participate in the selective tests for Specialized Health Training belong to a group of professionals who possess ample technical and professional capacity, which will also be required for the professional activity they will develop at some point, which includes the use of information technologies. Furthermore, the performance of certain procedures electronically, rather than in person, contributes to reducing situations susceptible of producing crowds, which must be avoided especially in the current context of health crisis caused by the COVID-19 pandemic and particularly regarding health professionals, a group regarding which precautions must be heightened. Without prejudice to all of the above, the use of electronic means will imply a greater streamlining of the processing of the selective tests and will facilitate the accessibility of the applicants, who can carry out the necessary procedures from any place and time, within the deadlines established in the call. V 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 the 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 end that justifies the urgency legislation is to meet a concrete situation, within the governmental objectives, which for reasons difficult to foresee requires an immediate normative action in a shorter period 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 is inscribed in 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, implies an ordering of political priorities of action (STC, of January 30, 2019, Unconstitutionality Appeal no. 2208-2019); in this case, measures aimed at increasing efficiency in the functioning of public employment. The adequate supervision of the recourse to the decree-law requires the analysis of two aspects from the constitutional perspective: on the one hand, the explicit and reasoned presentation of the motives that have been taken into account by the Government in its approval (STC 29/1982, of May 31, FJ 3; 111/1983, of December 2, FJ 5; 182/1997, of October 20, FJ 3, and 137/2003, of July 3, FJ 4); and, on the other hand, the existence of a necessary connection between the defined situation of urgency and the concrete measure adopted to meet it (STC 29/1982, of May 31, FJ 3; 182/1997, of October 20, FJ 3, and 137/2003, of July 3, FJ 4). With regard to the definition of the situation of urgency, it has been specified that it is not nece

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