Royal Decree-Law 18/2020, of 12 May, on Social Measures in Defence of Employment

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Núm. 134 Miércoles 13 de mayo de 2020 Sec. I. Pág. 32257
I. DISPOSICIONES GENERALES
JEFATURA DEL ESTADO
4959 Real Decreto-ley 18/2020, de 12 de mayo, de medidas sociales en defensa del empleo.
I
The evolution of the health crisis derived from COVID-19 has precipitated the adoption of a set of measures of all kinds, and among them, with special depth and intensity, measures of a labor nature.
In the case of Spain, the expansion of the disease initially obliged the adoption of measures by the health authorities and, subsequently, led to the approval of Royal Decree 463/2020, of 14 March, by which the state of alarm was established to manage the health crisis situation caused by COVID-19, which involved important restrictive measures on mobility and economic activity, and which has been prolonged on several occasions. These containment measures implied the establishment of specific preventive measures in the labor provision in order to reduce the number of people exposed, as well as the time of exposure of the same, through the partial or total cessation of certain activities. To this emergency situation responded Royal Decree-Law 8/2020, of 17 March, of urgent extraordinary measures to face the economic and social impact of COVID-19, in whose chapter II a set of flexibility measures were established that allowed to streamline the mechanisms provided for by law so that companies and the workers could suspend or reduce their activity, allowing, in this way, access to the necessary economic benefits. These measures responded to a double objective:
a) Establish the necessary mechanisms so that the procedures for suspension or reduction of the working day that are applicable, according to current legislation, had the necessary agility to guarantee that the socio-economic consequences of the health emergency situation had the least possible impact on employment. b) Protect the workers, both their health and safety, containing the progression of the disease through confinement and other containment measures, as well as guaranteeing access to substitute income for all those workers who were affected by the Temporary Employment Regulation Files (ERTE). To the previous measures were added the provisions contained in Royal Decree- law 9/2020, of 27 March, by which complementary measures are adopted in the labor field, to alleviate the effects derived from COVID-19. Among others, this law provides that the causes referred to in articles 22 and 23 of Royal Decree-Law 8/2020, of 17 March, cannot be understood as justifying the termination of employment contracts. Likewise, it provides for the interruption of the calculation of the maximum duration of temporary contracts, which aims to guarantee that these can deploy full effects, as far as the provision of services, the training that accompanies them and the contribution to business activity, during the initially planned time, in such a way that the situation of emergency generated does not deprive the company of its real capacity to organize its resources. This is a measure of extraordinary importance in order to avoid that a market like the Spanish one, with a high index of temporary hiring, sees its salaried population drastically reduced. cve: BOE-A-2020-4959 Verificable in https://www.boe.es

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Núm. 134 Miércoles 13 de mayo de 2020 Sec. I. Pág. 32258 In short, this is a strategy that, despite the situation created by the health emergency, has been able to significantly contain the destruction of employment and of business fabric, making possible, as anticipated in the statement of reasons of Royal Decree-Law 8/2020, of 17 March, "avoid the exit from the market of solvent companies and affected negatively by this transitory and exceptional situation, contributing to mitigate the negative impact on employment and economic activity." II Having fulfilled its initial objective, the need arises, after this exceptional period, to reactivate progressively the economy, by dynamizing those sectors whose activity continues to be limited by health restrictions derived, among other situations, by the measures of confinement and containment agreed in the framework of the state of alarm. The objective, therefore, is to provide a balanced response to the situation described, taking into consideration the effects that the health emergency and the measures of containment and the limitations have caused in the activity of the companies and in the employment contracts, and especially on wage incomes, while attending to the landscape of de-escalation and the progressive resumption of economic activity, which requires support mechanisms, social rationality and necessary protection. From all the above, the most representative business organizations of our country are aware, the Spanish Confederation of Business Organizations (CEOE), the Spanish Confederation of Small and Medium Enterprises (CEPYME), and the most representative union organizations, Comisiones Obreras (CC.OO.) and the Unión General de Trabajadores (UGT). Therefore, the measures contained in this royal decree-law have been the product of social dialogue and the agreement reached between the social agents and the Government on May 8, 2020, the day of the first centenary of the Ministry of Labor. After three weeks of intense negotiations, these measures aim to give a adequate response so that companies adopt the necessary dynamic adjustments that allow them to transition to a "new normality" scenario, safeguard employment and protect especially the workers. III The ERTEs for force majeure derived from COVID-19 are regulated in article 22 of Royal Decree-Law 8/2020, of 17 March, which establishes what must be considered temporary force majeure derived from COVID-19, for the purposes of allowing suspension of the contract or reduction of the working day for this cause and access to the special labor measures regulated in articles 24 and 25 of said royal decree-law. According to article 22 of Royal Decree-Law 8/2020, of 17 March, it is considered proven from temporary force majeure with the effects provided in article 47.3, which refers to article 51.7, both of the consolidated text of the Workers' Statute, approved by Royal Legislative Decree 2/2015, of 23 October, the suspensions and reductions of
working hours that have their direct cause in losses of activity caused by COVID-19, including the declaration of the state of alarm, which imply suspension or cancellation of activities, temporary closure of premises of public flow, restrictions in public transport and, in general, of the mobility of people and goods, lack of supplies that seriously prevent continuing with the ordinary development of the activity, or in urgent and extraordinary situations due to the contagion of the staff or the adoption of preventive isolation measures decreed by the health authority, which must be duly accredited. The concrete definition of the causes that integrate the force majeure by COVID-19, responds thus to an external and peremptory cause whose effects and concrete scopes are decided at each moment by the competent authorities for reasons of health cve: BOE-A-2020-4959 Verificable in https://www.boe.es

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Núm. 134 Miércoles 13 de mayo de 2020 Sec. I. Pág. 32259 public health, which has as a consequence that the different measures can be applied with a differentiated intensity and gradation.
Consequently, it is appropriate to continue applying the measures of suspension and reduction of working hours in those companies that, by effect of the restrictions or "losses of activity" derived and included in the aforementioned article 22.1 and that still persist, continue to be unable to recover their activity. This force majeure extends to the period during which they were affected by the causes described in said provision that prevent the restart of their activity, while they last and, in principle, until June 30, 2020. In a situation of partial force majeure derived from COVID-19, it is considered, therefore, those companies and entities that have a temporary employment regulation file authorized on the basis of article 22 of Royal Decree-Law 8/2020, of 17 March, from the moment when the causes reflected in said provision, and by reason of which the different flexibility measures in the form of suspensions or reductions of working hours were applied, allow the partial recovery of their activity, until June 30, 2020. These companies and entities must proceed to reinstate the affected workers, to the extent necessary for the development of their activity, prioritizing adjustments in terms of reduction of working hours. The objective is to facilitate the transition to reductions in working hours, which represent a lesser economic impact on the worker and which will allow to attend to the supply and demand of products and services of the companies in a gradual manner, to the extent that the activity and personnel structure allow it. Likewise, the above allows to guarantee a better management of working time, reducing exposure times, in accordance with the updated information by the public authorities on the prevalence of COVID-19. Therefore, the scheme is that of Royal Decree-Law 8/2020, of 17 March, maintaining the causes and the extraordinary measures included in it, which allows to respond fully and with a dynamic character to the needs as they were initially posed, ceasing to do so by reason of their disaffection or disconnection on the activity and the staff of the company, without imposing new and burdensome procedural conditions. In this way, companies can recover all or part of their activity if, for the reasons mentioned, the workers return to perform their tasks on a full or partial basis, renouncing or modifying in their application the exceptional measures that were adopted in a scenario of interruption of business activity or of greater rigor in confinement, with the only requirement of communicating, in advance, to the competent labor authority the total renunciation of them, and to the State Public Employment Service those variations that refer to the termination of the application of the measure with respect to all or part of the affected persons. For their part, to the companies that, from the entry into force of this royal decree- law and until June 30, come to apply measures of suspension or reduction of working hours for
objective reasons, economic, technical, organizational and production reasons, article 23 of Royal Decree-Law 8/2020, of 17 March, will apply to them. In order to avoid unnecessary interruptions that result in harm or lack of protection of the workers, it is expressly provided for the possibility that the effects of the measures of reduction of working hours or suspension of contracts retroact their effects to the date of finalization of the files by cause of force majeure that preceded them. For the situations provided for in this royal decree-law, extraordinary measures continue to be applied in the matter of unemployment protection and new extraordinary measures are established in the matter of contribution. cve: BOE-A-2020-4959 Verificable in https://www.boe.es

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Núm. 134 Miércoles 13 de mayo de 2020 Sec. I. Pág. 32260 With respect to the measures in the matter of unemployment protection linked to the extraordinary measures established in articles 22 and 23 of Royal Decree-Law 8/2020, of 17 March, including those that apply from the entry into force of this royal decree-law, and with the specialties described in their articles 1 and 2, all the specialties provided for in paragraphs 1 to 5 of article 25 of Royal Decree-Law 8/2020, of 17 March, are maintained, until June 30. Likewise, and combining the necessary balance between recovery of activity and sustainability of the economic capacity of companies, exemptions in contributions are applied to the files by cause of force majeure, with different scope depending on whether the situation of force majeure is total or partial, in which the company is located, distinguishing, in the same way, for the purposes of the percentage of exemption, between the restart of activity and the partial maintenance of the measures of suspension or reduction of working hours. The objective, therefore, is to allow an adequate transition that makes possible the gradual recovery of business activity and that it is developed in a coordinated manner with the recovery of general economic activity, counting, for this, with the necessary stimulus. Finally, two separate additional provisions are foreseen, the first on the faculty recognized to the Government, by agreement of the Council of Ministers, to extend the measures of suspension and reduction of working hours by cause of force majeure, total and partial, if the restrictions on activity linked to health reasons persist, and the second regarding the creation of a tripartite labor follow-up Commission. Accompanying the measures of economic rationality are the necessary measures of social rationality, maintaining the validity of those complementary measures of employment protection that are understood to be necessary to guarantee the necessary stability and avoid the effect of high quantitative external flexibility, through dismissals and destruction of jobs. With respect to the employment safeguard provided for in the sixth additional provision of Royal Decree-Law 8/2020, of 17 March, it is specified, through the modification agreed in this norm, in its subjective and objective scopes, measures linked and consequences of its non-compliance, taking into account also the specific characteristics of the different sectors and the applicable labor legislation and, in particular, the specifics of those companies that present a high variability or seasonality of employment. In this way, this royal decree-law is structured in five articles, two additional provisions and three final provisions. IV This royal decree-law complies with the principles of good regulation required according to article 129 of Law 39/2015, of 1 October, of the Common Administrative Procedure of the Public Administrations. Thus, it responds to the need to minimize
the risk of an uncontrolled and irreversible impact of the extraordinary emergency situation caused by COVID-19 both in economic activity, as well as in employment and in the available resources of the workers, avoiding, in this way, situations of vulnerability and lack of protection. It is effective and proportional, since it regulates the essential aspects to achieve its objective, limiting its effects to the concurrence of the temporary and extraordinary situation described. Likewise, it complies with the principle of legal certainty, being coherent with the rest of the legal order. Likewise, it complies with the principle of transparency, since it clearly identifies its purpose and an explanation is offered, without the public participation procedures established in article 26 of Law 50/1997 having been carried out, under the exception that, for royal decree-laws, regulates paragraph 11 of the aforementioned provision. cve: BOE-A-2020-4959 Verificable in https://www.boe.es

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Núm. 134 Miércoles 13 de mayo de 2020 Sec. I. Pág. 32261 Finally, it is coherent with the rest of the national legal order and complies with the principle of efficiency, since its application does not impose unnecessary or accessory administrative burdens. V With respect to the enabling case of extraordinary and urgent need established in
article 86.1 CE, the content of the royal decree-law is based on objective reasons, of political opportunity and extraordinary urgency that require its immediate approval, among others the serious and exceptional situation that persists as a consequence of the health crisis situation caused by COVID-19, which makes it indispensable to give an adequate response to the needs that arise in the labor field.
Article 86 of the Constitution allows the Government to issue royal decree-laws "in
case of extraordinary and urgent need", as long as they do not affect the ordering of the basic institutions of the State, to the rights, duties and freedoms of citizens regulated in title I of the Constitution, to the regime of the Autonomous Communities nor to the general Electoral Law. The royal decree-law constitutes, in this way, a constitutionally lawful instrument, as long as, as repeatedly required by our Constitutional Court (sentences 6/1983, of 4 February, F. 5; 11/2002, of 17 January, F. 4, 137/2003, of 3 July, F. 3, and 189/2005, of 7 July, 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 predict 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. In short, the extraordinary and urgent need to approve this royal decree- law is inscribed in the political judgment or of opportunity that corresponds to the Government (SSTC 61/2018, of 7 June, FJ 4; 142/2014, of 11 September, FJ 3) and this decision, undoubtedly, implies an ordering of political priorities of action (STC, of 30 January 2019, Unconstitutional Appeal no. 2208-2019), centered on giving an adequate response that allows to restore the normal functioning of the economic and productive activity of the companies, the necessary legal certainty and the protection of the groups that could result vulnerable before the concurrence of the described situation and that are defined by their extraordinary and urgent condition. All the reasons exposed justify widely and reasonably the adoption of the present norm (SSTC 29/1982, of 31 May, FJ 3; 111/1983, of 2 December, FJ 5; 182/1997, of 20 October, FJ 3), there being the necessary connection between the situation of urgency exposed and the concrete measure adopted to meet it, without constituting a case of abusive or arbitrary use of the referred constitutional instrument. In sum, in the measures that are adopted in this royal decree-law concur the circumstances of extraordinary and urgent need provided for in article 86 of the Constitution, considering, on the other hand, that the objectives that are intended to be reached with it cannot be achieved through the processing of a law by the urgency procedure. Likewise, it should be noted that this royal decree-law does not affect the ordering of the basic institutions of the State, to the rights, duties and freedoms of citizens regulated in title I of the Spanish Constitution, to the regime of the Autonomous Communities nor to the general Electoral Law. This royal decree-law is issued under the provisions of article 149.1.7th and 17th of the Spanish Constitution, which attributes to the State the exclusive competence over labor legislation, as well as
over the basic legislation and economic regime of the Social Security, without prejudice to its execution by the organs of the Autonomous Communities. cve: BOE-A-2020-4959 Verificable in https://www.boe.es

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Núm. 134 Miércoles 13 de mayo de 2020 Sec. I. Pág. 32262 In virtue thereof, making use of the authorization contained in article 86 of the Spanish Constitution, at the proposal of the Minister of Labor and Social Economy and of the Minister of Inclusion, Social Security and Migrations, and prior deliberation of the Council of Ministers in its meeting of May 12, 2020, ORDERS:
Article 1. Specialties applicable to temporary employment regulation files based on the causes collected in article 22 of Royal Decree-Law 8/2020, of 17 March, of urgent extraordinary measures to face the economic and social impact of COVID-19 during the deconfinement.

1. From the entry into force of this royal decree-law, companies and entities that had a temporary employment regulation file based on article 22 of Royal Decree-Law 8/2020, of 17 March, and were affected by the causes referred to in said provision that prevent the restart of their activity, will continue in a situation of total force majeure derived from COVID-19, while they last and in no case beyond June 30, 2020.
2. Companies and entities that have a temporary employment regulation file authorized on the basis of article 22 of Royal Decree-Law 8/2020, of 17 March, will be in a situation of partial force majeure derived from COVID-19, from the moment when the causes reflected in said provision allow the partial recovery of their activity, until June 30, 2020.
   These companies and entities must proceed to reinstate the affected workers by temporary employment regulation measures, to the extent necessary for the development of their activity, prioritizing adjustments in terms of reduction of working hours.
3. The companies and entities referred to in this article must communicate to the labor authority the total renunciation, if any, of the authorized temporary employment regulation file, within 15 days from the date of effects thereof.
   Without prejudice to the above, the renunciation by these companies and entities to the temporary employment regulation files or, if applicable, the suspension or regularization of the payment of the benefits that derive from their modification, will be carried out prior communication of these to the State Public Employment Service of the variations in the data contained in the initial collective request for access to unemployment protection. In any case, these companies and entities must communicate to the State Public Employment Service those variations that refer to the termination of the application of the measure with respect to all or part of the affected persons, either in the number of these or in the percentage of partial activity of their individual working day, when the flexibility of the restriction measures that affect the activity of the company allows the effective reincorporation to work of those.
   Article 2. Procedures for suspension and reduction of working hours for economic, technical, organizational and production reasons communicated from deconfinement.
4. To the temporary employment regulation files based on cause

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