UOC : Coronavirus y derecho laboral: ¿cuáles son los deberes y los límites del trabajador y de la empresa?

The experts clarify whether it is mandatory to inform the company if you travel to risk areas, if the worker can refuse to travel for work or if a list of infected employees can be published 

As of today, there are already 260 cases of coronavirus infection in Spain. Many other countries, such as France, Germany or Italy, have hundreds of people affected. Against this background, the European Center for Disease Prevention and Control (ECDC) has announced that the level of risk has risen to «moderate high» for citizens of the European Union. As the alert increases, so do the doubts about what rights and duties the worker has and what the company can or cannot do in situations like the current one. Pere Vidal, expert in labor law and associate professor at the  UOC Law and Political Science Department , and Eva Rimbau, teleworking expert and professor at the  UOC Economics and Business Departmentclarifies some doubts about it.

Should the company inform its workers about protection measures against COVID-19? 

Companies are recommended to give instructions to their employees, also remembering that, according to article 29 of the Occupational Risk Prevention Law (LPRL), they also have the duty to ensure their safety and health, as well as those of those people who may be affected by their activity, and must cooperate with the company so that it can guarantee safe working conditions.

Thus, the company must remind workers of the individual protection measures recommended by the Ministry of Health, with, for example, visible signage in the workplace, photographs or infographics provided by the health authorities.

Should I inform my company if I travel to a risk area?

In the same way that the company must inform, the employee also has an obligation. «Yes, the worker has the duty to inform the company because the company has a duty of cooperation in matters of health and safety. Therefore, if a worker omits this information, he will be breaching obligations in terms of risk prevention and may be subject to disciplinary action (according to article 29.3 of the LPRL) », affirms Pere Vidal. This includes the imposition of faults or even dismissal, which, although in this case it would be disproportionate, according to the expert it would be considered appropriate.

Can the company force me to travel to a risk area? Can the worker refuse?

No, workers have the right to interrupt their activity when it entails «serious and imminent risk to their life or health,» explains Vidal. In fact, the  Coronaviridae  are mentioned in Royal Decree 664/1997 on the protection of workers against the risks related to exposure to biological agents, but their «classification may not be adjusted to their real danger,» adds the expert.

As for the second question, it details: «The worker’s refusal to obey the order to travel to a danger zone could be considered as the legitimate exercise of the worker’s right to resist and not as a punishable disobedience, born from a subjective appreciation» .

If I get infected, what employment situation am I in?

There are two situations, if I have been infected I am on leave from work and, therefore, as a worker I neither should nor can work. «In the case of being in preventive isolation as a consequence of the coronavirus, the worker will be considered to be in a situation of temporary disability derived from a common disease,» says Vidal.

Can the prevention service publish a list of affected people?

According to the Spanish Agency for Data Protection (AEPD), the company cannot have information on data related to health unless the express consent of the workers is obtained. «Company prevention services cannot publish a list of possible infected; in fact, they should not provide more information than that provided for in article 22.4 of the LPRL, that is, on examinations carried out in relation to the aptitude for the performance of the job or with the need to introduce or improve protection measures or prevention,» says Vidal.

For the expert, with the entry into force of the General Data Protection Regulation (RGPD) and the Organic Law on Data Protection and Guarantee of Digital Rights (LOPDGDD), the application of the principles of proportionality and minimization of personal health data. In 2009, the AEPD had to pronounce itself before a company whose prevention service intended to make «a list in which the workers who had been affected by influenza A appeared.»

Can they ask me for a medical report?

«The company cannot force a worker to present a medical certificate to find out if he has COVID-19 or any other pathology,» warns Vidal, who adds: «it cannot fire a worker for not providing these medical reports either» .

The Ministry of Labor has released an  action guide to stop the coronavirus epidemic in work environments . The document asks companies to stop activity if there is a risk of contagion in the workplace, provided that there is a «serious and imminent risk» that includes an assessment based on «reliable facts». To “avoid situations of social contact”, companies are encouraged to implement teleworking.

Can Spain assume this teleworking measure as effective?

«Spain is not a country where there is abundant teleworking, but rather it is one of the European countries with the lowest rate of both occasional and regular teleworking,» says Rimbau. In a crisis situation like the current one, rushing can cause problems. «It is very difficult for companies that do not have teleworking practices to implement it urgently. In fact, the companies that have started to use this model in the face of the current alert situation are because they already had teleworking policies more or less in place and what they have simply done is expand them”, affirms the expert.

«Implementing it in a company that has never had it is very difficult because it requires policies, technology and a management quality that they do not improvise,» he adds. «Emergency» teleworking in the face of a possible pandemic will be «expensive and probably will not give the expected results, and for this reason, it could be thought that it does not work.»

Rimbau warns, “what doesn’t work is unplanned teleworking; What would be desirable is that, before the health situation leads to a general call to telework, planning begins now in all companies to implement it successfully.

Can they force me to telework?

«The measure must be agreed between the worker and the company, teleworking cannot be imposed by the company nor can it be imposed by way of article 41 of the Workers’ Statute or by collective agreement,» says Vidal. The worker has the right to decide since this change implies modifications in the contractual regime. «Providing services from home, instead of providing them from the workplace, means that part of the work activity is carried out without business supervision and this cannot be imposed,» explains the labor lawyer.

If I got it at work, is it considered a professional contingency?

«In general and with few exceptions, the courts have determined that situations caused by influenza or equivalent viral processes derive from common illness, even with respect to health personnel,» says Vidal.

To be considered as an occupational disease or occupational accident, it must originate from the consequences of the work carried out, due to the action or elements indicated for each occupational disease, and be recognized on the list of regulatory occupational diseases.

Can they force me to be isolated?

«Yes they can if the health authorities so decide,» considers Vidal. The authorities can adopt control measures such as «preventive isolation», known as quarantine, in the event of a danger to the health of the population and to avoid the risks of contagion.

«These workers in preventive isolation are not affected by an accident or disease, but are monitored and receive health care in order to diagnose their condition and, for these reasons, they are prevented from going to work,» explains Vidal. Even so, according to the criteria adopted by Social Security, these workers are considered to be in a situation of temporary disability, that is, on sick leave, and therefore exempt from work.

If my company does not give me a job due to COVID-19, will I get paid? 

«When it comes to catastrophic causes or force majeure, such as the COVID-19 epidemic, and the company cannot assign work to the employee, they may not receive their salary,» warns Vidal. Thus, work activity could be paralyzed, a procedure for collective dismissal or suspension of contracts or reduction of working hours (ERTE) could be initiated.

Pere Vidal Collaborating professor at the Law and Political Science Studies of the UOC, expert in worker’s law.

Eva Rimbau Professor of Economics and Business Studies at the UOC.