New extension of the ERTEs until 31st of May 2021

A new extension of the ERTEs is agreed, following the Government’s agreement with the social agents. On this occasion, the ERTES ( Temporary Employment Regulation Files) are extended until May 31st. This is the third extension that has been reached between the parties and which maintains the flexibility of the current ERTE model, giving rise to the new Royal Decree Law 2/2021.

Below are the main lines on which agreement has been reached:

New extension of the ERTEs

Automatic extension of all living major force ERTEs (art. 22 RDL 8/2020).
Automatic extension of all the ERTES of impediment and Limitation. Authorized by express resolution or administrative silence based on art. 2 RDL 30/2020.

The companies affected by these proceedings will be able to access the following exemptions:

ERTE derived from ETOP causes motivated by covid.

ERTE arising from technical, technical, organizational or production causes based on Covid-19.

Once the expiration date is reached, the possibility of reaching an agreement during the consultation period of the new file is maintained, in order to extend this type of files, whose maximum duration will be until May 31, 2021.

Specific ERTES by CNAE

Those companies affected by causes derived from Covid-19, by an ERTE of Force Majeure or an ERTE ETOP, whose activity is within the list of CNAES (referred to activities with a percentage of employees affected by these proceedings higher than 15% and a high recovery rate -until this is equal or higher than 70%-). As well as those companies that have been considered as companies, whose business has been qualified as dependent or members of the value chain of the companies whose activity is included in said list, will be entitled to the following exemptions in the Social Security contributions:

A new list is established, in which new headings are incorporated according to ANEXO I.

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New ERTE of major force due to impediment or limitation of the development of the activity.

Those companies that are prevented or limited in the development of their activity will be able to file a new ERTE major force, once the new RDL comes into force, which will have to be processed before the labor authority in accordance with art. 47 of the TRET (requesting the confirmation of the cause).

Peculiarities of these proceedings:

They will be processed by work center.
The duration will be limited to the duration of the measures decreed for containment. Except in the case of activity limitation proceedings, the duration of which will be extended until May 31, 2021.

Exemptions from Social Security contributions:

Transit from an impediment file to limitation and vice versa.

The companies that have a proven cause of force majeure, either by limitation or impediment that affects their activity (express or tacit), will be able to request the change of file modality, as a consequence of changes in the rules and measures of sanitary restrictions adopted by the competent authorities, which will not require the processing of a new ERTE.

It will be sufficient to notify the labor authority that had approved the file, as well as the legal representation of the workers (or the employees themselves, in the absence of their representation), indicating the effective date, work centers and persons affected, presenting the corresponding responsible statement to the General Treasury of the Social Security (the latter, in order to be able to access the exemptions in the quotas). Likewise, it will be necessary to make the previous communication of the changes that take place to the SEPE with respect to the persons affected by the ERTE.

Limitations and prohibitions for companies under ERTE

It will continue to be applicable:

The prohibition to distribute dividends, corresponding to the fiscal year in which these ERTES are applied, to companies benefiting from exemptions.
It is still prohibited to take advantage of extended or new force majeure ERTES due to impediment or limitation in the development of their activity and ETOP, to companies with tax domicile in countries or territories qualified as tax havens.
Commitment to maintain employment for 6 more months for the companies that take advantage of the new measures of exemptions in the Social Security contributions. As established in the sixth additional provision of RDL 8/2020. If the company is affected by a previously acquired commitment to maintain the employment, the beginning of the new period will take place when such commitment has ended.
The prohibition of dismissal due to force majeure or objective causes, under which the ERTES linked to Covid-19 are covered, is maintained until May 31, 2021.
The contracts of temporary workers who are affected by suspension ERTES will see the duration of their contract extended. In any of the ERTE modalities. And in that period for which the contract was affected by total suspension.
The prohibition to work overtime, to formulate new hires is maintained. As well as to carry out new outsourcing of services in companies affected by ERTES (in any of its modalities).

Unemployment benefits

Access to unemployment benefits without the requirement of a vesting period is extended until May 31, 2021.
The consumption of unemployment benefits is generated, by the people who are receiving the benefit as a consequence of their involvement in the ERTE (from October 1, 2020). However, they will be replaced in those cases in which a worker loses his/her job before January 1, 2022. As a consequence of the termination of the employment contract, individual or collective dismissal, economic, technical, organizational or production causes, or dismissal declared unfair.
It will be maintained:
- The extraordinary benefit for discontinuous permanent workers or workers who perform fine and periodic work that is repeated on certain dates.
- Compatibility of the (full) unemployment benefit derived from an ERTE with a part-time job.