The publication in the BOE of Royal Decree-Law 30/2020, of 29 September, on social measures in defense of employment, regulates the extension of the temporary employment regulation files of force majeure approved on the COVID-19 and new ERTES are contemplate until 31 January 2021.

The ERTES of force majeure derived from the COVID-19 in force are extended until 31 January 2021; but as of 1 October only companies whose activity is classified in the CNAE 09 detailed in the Royal Decree or those whose business depends, indirectly and in its majority, on the companies listed in the Annex, or forms part of the value chain of these, will be able to benefit from quota exemptions for this type of ERTES.

Because of this legislation, there are three possibilities from 30 September 2020 for carrying out an ERTE in a workplace based on the Covid-19:

  • ERTE for force majeure due to impediment of activity

Companies and entities of any sector or activity that are impeded from carrying out their activity in any of their work centers, as a consequence of new restrictions or health containment measures adopted, as of 01/10/2020, by Spanish or foreign authorities, may present ERTE FOR FORCE MAJEURE DUE TO IMPEDIMENT OF ACTIVITY, according to art. 47.3 of the ET and provided that it is authorized, by the work centers affected and furthermore all the employees affected may benefit, but provided that they are attached to the center where the ERTE is applied and are within the contribution account of that center.

  • ERTE due to force majeure due to activity limitations

The companies and entities that see limited the normal development of their activity as a result of decisions or measures adopted by the Spanish authorities, will be able to benefit, as from 30/09/2020, and for the affected centers, prior authorization of the ERTE by FM and for the cause of LIMITATIONS, processed in accordance with art. 47.3 Of the ET, of the employees who have suspended or reduced their working hours.

  • ERTE for objective reasons linked to COVID-19

Since 30 September 2020, an ERTE cannot be process due to force majeure under the COVID-19 if it is not due to a measure adopted by the competent authority that affects the workplace in completely or in part. Then, if it is due to another reason, an ERTE must be process for economic, technical, organizational or production reasons (ERTE ETOP).

The characteristics of this type of ERTE:

  • the Labour Authority must not authorize it, although it must be communicate to them)
  • must be negotiated with the workers’ representatives
  • does not enjoy exemption from Social Security contributions, unless it has been processed consecutively with an ERTE due to force majeure and the company’s activity is classified in one of the CNAE codes in the annex to the Royal Decree.

It is important to mention Article 5 of the regulation, on safeguarding employment, if your company carried out an ERTE regulated by RD Law 8/2020, the maintenance of employment would be 6 months from the time you reincorporated the first employee.

If the ERTE implemented according to RD Law 24/2020, the 6 months would count from the date of entry into force of that law.

However, if you decide to extend your ERTE with exemptions under the new RD Law or apply any of the specialties listed below, you will be obliged to maintain employment for a further period of 6 months.

If your company were in ERTE of force majeure, this additional 6-month period would start from the date the first mandatory 6-month period ends. In other words, you would have to keep your job for a total of 12 months.

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