The Government has agreed with employers and trade unions on a new extension of the ERTES due to Limitations and ERTES due to Activity Impediment until 28 February 2022, the content of which is included in Royal Decree-Law 18/2021, of 28 September, on urgent measures for the protection of employment, economic recovery and improvement of the labour market.

The renewal of the aid will take place in two stages:

  1. From 1 to 31 October 2021, during which the current conditions of the ERTES are extended without modifications or exemptions
  2. From 1 November 2021 to 28 February 2022, during which the new ERTES conditions will come into force.

Changes to the ERTES exemption regime

ERTE due to Impediment of activity

In the case of ERTE due to impediment of activity, those cases in which companies or employers cannot carry out their activity due to restrictions by the competent authorities, the exemptions in social contributions will be 100%, independent of the business size and whether or not it offers training.

ERTE due to restrictions

  • 80% exemptions for companies with more than 10 employees that offer training and 40% exemptions in social contributions for companies that do not offer training
  • 80% exemptions for companies with less than 10 employees that offer training actions and 50% exemptions in social security contributions for companies that do not offer training actions.

In addition, the Royal Decree-Law establishes that it will be possible to change from an ERTE due to Restrictions to an ERTE due to Impediments when the circumstances arise, and the company must notify the labour authority of the persons affected and the effective date by means of a responsible declaration.

Companies that currently have these ERTES active will have to initiate a new application, as well as the application for unemployment benefits for their employees. The application must be processed between 1 and 15 October 2021 and, if it is not submitted, the ERTE will be terminated.

ERTE employees must receive training from the company, as the social security contribution exemption scheme for ERTE employees will depend on whether the company offers training activities to ERTE employees or not. In this sense, in companies with between 10 and 49 employees, the training activities must last 30 hours and in companies with more than 50 employees, 40 hours. All these training actions must be carried out before 30 June 2022 and for the duration of the ERTE, respecting the minimum breaks and informing the employees’ representatives, if any.

In the event that the Labour Inspectorate detects that the training action has not been carried out by the company, it will initiate the corresponding proceedings for penalties and settlement of quotas for the difference between the amounts applied and those established, respectively, with respect to each of the employees for whom such actions have not been carried out.

Other conditions linked to the ERTES

This latest extension of ERTES also extends the calculation of unemployment benefit (in this case until 31 December 2022) and restores the benefit for permanent-discontinuous employees who will be entitled to an unemployment benefit counter from the start.

Companies must continue to maintain employment for at least six months after the employee leaves the ERTE.

They will continue to be prohibit from working overtime; they will not be able to hire new employees or distribute dividends and they will be prohibited from interrupting the calculation in temporary contracts.

Inmaculada Pessini

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