Within the framework of the measures undertaken by the Government to minimise the effects of the health crisis caused by COVID-19, measures have been set up to promote the reconciliation of work and family life for employees who can prove that they have care duties. The adoption of these measures is essential to avoid the application of sanctions for lack of work attendance in the face of the need to care for dependents, a situation that is aggravated by the closure of various public or subsidised establishments, such as schools, retirement homes or day centres.
To this end, the right to adapt the working day or reduce it, with a proportional reduction in salary, is recognized for employees who are in any of the following exceptional circumstances:
- when the presence of the worker is necessary to care for the spouse or domestic partner or family member up to the second degree of consanguinity who, for reasons of age, illness or disability, needs personal and direct care as a direct consequence of COVID-19;
- when the person who up to that moment had been responsible for the direct care or assistance of the worker’s spouse or relative up to the second degree could no longer do so for justified reasons related to COVID-19.
- Workers who have been affected by the closure of educational centres or others that provide care to the person in need of it.
The right to adapt or reduce the working day is an individual right of each of the parents or carers.
The worker’s request must be justified, reasonable and proportionate, taking into account the specific needs for care that must be provided, duly accredited, and the organisational needs of the workplace, particularly in the case of several workers exercising it in the same company.
The exercise of these rights is considered to be the exercise of conciliation rights for all purposes and any conflicts that may arise in their application must be resolved by the social jurisdiction through the special procedure for the exercise of conciliation rights (LRJS art.139).
Workers who are already enjoying an adjustment to their working hours as a result of conciliation, a reduction in working hours due to child or family care or any of the conciliation rights may temporarily waive them or request that the terms of their exercise be modified.
The request must be limited to the exceptional period of duration of the health crisis and must be adapted to the specific care needs of the worker, duly accredited, as well as to the organisational needs of the company.
In the absence of evidence to the contrary, the application is presumed to be justified, reasonable and proportionate. The measures envisaged are as follows:
A. Right to adapt the working day (RDL 8/2020 art6.2)
It is the prerogative of the worker to determine its scope and content.
The company and the worker must make every effort to reach an agreement.
It may concern the distribution of working time or any other aspect of working conditions:
- Change of shift;
- Change of working hours, flexible working hours, split or continuous working hours;
- Change of workplace;
- Change of functions;
- Change in the way work is performed, including remote working;
- any other change of conditions available within the company or which could reasonably and proportionately be implemented, taking into account the temporary and exceptional nature of the measures, which is limited to the exceptional period of duration of the COVID19 pandemic.
B. Right to a reduced working day (RDL 8/2020 art.6.3)
Workers who find themselves in any of the exceptional situations described may request a special reduction in the working day for legal custody or direct care of a family member, which will be governed by the general provisions of articles 37.6 and 37.7 of the ET with the following particularities:
- It is not required that the relative requiring care and attention does not carry out paid activity;
- must be communicated to the company 24 hours in advance;
- can reach 100% of the working day, as long as it is justified and reasonable and proportionate to the company’s particular situation.