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Huge Concern

| COVID-19 / News | Employment Law and Social Security

Alfredo Asptra analyzes the activity unilaterally by the worker who collects the guide of the Ministry before the coronavirus

Calm is the message that different public and government bodies have been asking, with good reason, to citizens, markets and companies, among others, in view of the appearance and propagation of the, commonly known as, coronavirus. A circumstance that has become news day after day and has also been making the headlines.

And for this, that is, so that this message can reach all areas (some of them particularly sensitive to situations such as the current one), it is absolutely necessary, without, however, neglecting functions and irresponsible behaviour, both to match words with facts and to avoid publications that, not being completely clear and playing with ambiguity, may generate a state of alarm and confusion that may lead to the adoption of decisions in a hasty manner and, therefore, with a high degree of probability that they will be wrong.

In this sense, the concern generated in the business and labour world by the Guide for Action in the Labour Environment in relation to the new Coronavirus published by the Ministry of Labour and Social Economy, a publication that has received criticism from both the business world and the public at large, has been enormous, crystallized through a press release from CEOE and Cepyme in which they describe the dissemination of the aforementioned Guide as a "serious error", as everything points out, by the Government itself, in a sort of attempt by the latter to order and fix which Ministry should take the lead in this matter.

Analyzing the content of the aforementioned document prepared and distributed by the Employment Ministry, it is worth noting, as a clear example of the above, the reference made to the possibility that employees, faced with a "serious and imminent risk", may interrupt their activity and unilaterally leave the work centre, citing Article 21.2 of Law 31/1995, of November 8, on the Prevention of Occupational Risks (LPRL).

In this regard, it should be noted that, without questioning the informative spirit that prevailed when the Guide was prepared and disseminated, the reality is that the explanation given of this possibility and, specifically, of what is to be understood by "serious and imminent risk", is highly confusing and ambiguous, generating, as previously reported, an evident alarm in the world of work that could lead to serious situations from the perspective of employment relations, affecting the very activity of companies, perhaps creating false expectations of legal protection.

Thus, and without prejudice to the fact that, fortunately for jurists, interpretations can be multiple, varied and mostly defensible, when it comes to interpreting what is to be understood as a "serious and imminent risk", one would have to follow the provisions of article 4.4 of the Law on the Prevention of Occupational Risks, when it links the term "imminent" to that (risk) which is rationally likely to materialize in the immediate future and, on the other hand, the term "serious" as that risk which could entail serious harm to the health of workers.


This being so and given the known medical consequences of the infection to date, it is mandatory to conclude that the virus would not have in any way the same impact and incidence in all people, being identified by the medical authorities themselves those risk factors or basic diseases that could lead to a special effect on health, as reflected in, among others, the procedure for action in cases of infection by the new coronavirus (SARS-Cov-2). From all of this, one can only conclude that, logically and necessarily, as the Guide seems to attempt to point out, there is no unlimited right of the employee to interrupt his activity and leave the workplace.

It is worth concluding by recalling the necessary coordination and importance of the behaviour and actions of the various players in order to avoid, as is in everyone's interest, a worsening of the current situation, with particular emphasis on respect for and compliance with preventive regulations.

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