The extension of remote working and work-life balance measures: key in the de-escalation process

In his appearance following the Council of Ministers meeting, the prime minister stated yesterday that remote working will remain a priority organizational measure during the four phases of the de-escalation process (maximum between six and eight weeks). Royal Decree Law 16/2020, published today, considers that the judicial proceedings on remote working and the special work-life balance measures of the MECUIDA Plan are urgent and a priority, so they can be relied on to build a case before the courts during the state of emergency.

Royal Decree Law 15/2020, of April 21, on additional emergency measures to support the economy and employment, envisages, among other issues, extending two measures initially provided in Royal Decree Law 8/2020: the priority of remote working and the extraordinary work-life balance measures (reduction and adjustment of working hours). Their term has been extended for two additional months after the period envisaged in Royal Decree Law 8/2020, which, given that that the government announced yesterday that the state of emergency will be extended for at least two more weeks, will take us to August 24, at least.

Remote working was certainly established as a preferred organizational measure during the exceptional situation arising from the COVID-19 crisis, provided (i) it is technically and reasonably possible, and (ii) the required adaptation effort is proportionate.

Today, it is understandable for the lawmaker  to commit to this organizational measure and to maintaining it, when it is feasible and proportionate, during this extension period. This is inferred from the Preamble of Royal Decree Law 15/2020, where it justifies the extension in the following terms: “to execute the containment measures envisaged in the applicable regulations, while ensuring business continuity, labor relations and organizational systems allowing activity to continue through alternative mechanisms, particularly remote working, will be prioritized, and the appropriate measures to make it possible must be facilitated.”

Given the extension of this work method (despite its temporary nature due to the current exceptional situation), companies must consider certain caveats:

• In terms of prevention: keep in mind that, as an exception, the risk assessment will be considered conducted with the employee’s self-assessment, without forgetting the management of other highly relevant matters in the context of remote working such as employees’ emotional management and psychosocial risks.
• In terms of controlling working hours: the remote working method must not allow the relaxation of the obligation provided in section 34.9 of the Spanish Workers Statute to record working hours daily.
• In terms of using electronic tools: it is advisable to review the protocols of use and reinforce the workforce’s knowledge of them now that employees are going to work remotely, outside the work center, for longer than envisaged.

Both the special right to adjustment of working hours and the extraordinary reduction of working hours have been extended, both measures also initially envisaged in Royal Decree Law 8/2020 (dubbed the “MECUIDA Plan” by the government). Broadly speaking, article 6 envisaged the workers’ genuine right to both adjust and reduce their working hours, provided they need to care for their partners, spouses or family members up to the second degree by blood to avoid the spread of COVID-19.

With regard to the special right to adjustment of working hours, the legislator has envisaged that workers may request adjustment of their working conditions (a broad and open list covering working hours and the place of provision of services, including remote working) with justification. It must also be reasonable and proportionate to their care needs. Both the content and the scope of the request depend on the worker, although the company’s organizational needs must be taken into account. The lawmaker has provided that both parties should try to reach an agreement, although the consequences of not reaching an agreement are not established, nor is there a reference, as with the reduction of working hours, to section 34.8 of the Workers Statute, which regulates the ordinary right to adjustment of working hours. In the absence of a specific provision, the general regime of that right is therefore applicable.

Regarding the extraordinary reduction of working hours, the lawmaker has authorized workers to request a reduction of up to 100% (with a proportional salary reduction), envisaging as a requirement for the general procedure of sections 37.6 and 37.7 of the Workers Statute that it must be communicated with 24 hours notice. Furthermore, the worker is released from having to prove that the person in need of care is not gainfully employed.

Royal Decree Law 15/2020 extends special work-life balance measures introduced on March 17, 2020 until at least August 24 (if the state of emergency is extended again, as the government has announced). The possibility of using these two special measures will coincide with two facts we believe may lead to a considerable increase in requests from workers: on the one hand, with the first phase of  de-escalation, families with children under 14 are allowed to go out for an hour a day; and, on the other, largely coinciding with the school break period.

These two circumstances could generate a greater need for work-life balance because children in that age group have to be accompanied by an adult when they go outside (although, for now, time slots have not been approved by the central government so workers have flexibility on when they decide to go out) and, in the summer, unlike now, in theory children will not have remote classes, which will make their parents presence more necessary in their day- to-day.

Ultimately, these are two further issues to take into account in the complex management of labor relations in the short (or perhaps now medium) term.