Does the legal mess of casualties serve as evidence?
The flood of infections caused by the ómicron variant of Covid, with more than 100,000 daily sick leaves in the month of December, has caused the collapse of Primary Care centers, unable to assume with the staff they have -who also suffers the effects of the pandemic- all patients with symptoms or who have tested positive with the antigen test. This health jam has now moved to companies and public administrations, doomed to an unknown situation that means that a good part of their staff is on leave or infected and working from home and how discharges are delayed excessively before the problems in the management of temporary disability. Around one in three casualties that occur are due to coronavirus in some of its variants.
Faced with this situation, there are many legal doubts that arise among the human resources managers of the companies, who are massively turning to the advisory and consulting services to know what to do in the face of an economic bleeding and an organizational chaos caused by the contagion by the ómicron strain. Misinformation is causing, among other things, that many companies even consider whether simply photographing an antigen test is enough to consider that the worker has begun a leave and that there are enough cases of workers discharged by mistake, without being infected, due to bureaucratic chaos.
Faced with these issues, Luis Manias, head of the Labor Area of SincroGO, a specialized consultancy in labor, tax and accounting matters for companies, admits that company managers are coming with situations of this type and emphasizes that, although it seems obvious, having a positive antigen test is not enough to understand that the worker is on leave due to temporary disability. «Without an official leave report, there is no casualty. The infected worker, once he tests positive for antigens and/or PCR, must contact his health centre or gp to be issued a temporary disability report that validates that medical leave».
That bodies other than health services could process the casualties would imply a treatment of confidential data of the workers
Royal Decree 6/2020, of March 10, in the cases related to Covid-19, which mentions the operation of the sick leave parts in the context of the pandemic, makes it clear that the only body with legal capacity to grant both the sick leave and high parts is the Public Health Service that corresponds to the worker, and that although the infections are accredited as a common disease, they will have economic effects such as an accident at work. The Independent Trade Union and Civil Servants Confederation (CSIF), the most representative union in the Civil Service, has proposed that to unclog the management of temporary disability, it could be assumed by the National Institute of Social Security (INSS), mutual societies or company doctors, but that would cause a new legal problem: that of confidentiality and complications in the transfer of data.
In accordance with the data protection regulations, in no case is the National Institute of Social Security (INSS) provided companies or their representatives with information on the pathological nature or diagnosis of a process of temporary disability that affects a worker, so that in the FILE INSS-Companies (FIE) will not appear in any case that information, highlights the Ministry of Social Security on its website.
Another problem that companies have noticed is the delay in the discharge process, an inconvenience that generates costs and serious inconveniences in personnel management. Although not all the autonomous communities have implemented a computer system that allows a worker to be discharged and at that same time schedule the discharge at seven days -the time foreseen for the quarantine-, the Minister of Inclusion, Social Security and Migration, José Luis Escrivá, has recognized that the option of issuing the registration and the cancellation simultaneously already exists legally, and for this reason it has clarified to the Community of Madrid that no regulatory change is necessary. However, those responsible for this community continue to insist that there is no «legal basis» for doctors to be able to issue at the same time medical discharges and discharges for Covid in cases of asymptomatic patients who only have to be isolated at home for seven days.
Covid casualties have the same economic treatment as work accidents. Pay Social Security, except on the first day
In spite of everything, this autonomy has chosen since Tuesday to attend the advice of the minister, while Catalonia has been doing so for some time. For its part, Andalusia, according to the Antena 3 website, has been offered to family doctors to work up to 12 hours, with a plus of 40 euros per hour, up to a maximum of 2,000 euros per month, so from the ninth day of extraordinary hours they would work for free. In the case of Galicia, the option has been to ask the doctors to take care of this management. In this community the increase in casualties has skyrocketed by 618% compared to the month of November, according to data from the Association of Mutual Societies for Work Accidents (Amat). Andalusia, Asturias, Catalonia, Community of Madrid, Valencian Community, Galicia and Murcia are the seven autonomies that have already established strategies to speed up the sick leaves and discharges due to coronavirus with the aim of unclogging the collapse of Primary Care.
There is also the possibility, clarifies the lawyer of SincroGO, of the companies to contact the Medical Inspection of the Public Health Services to issue the report of sick leave of workers who have communicated their isolation, do not go to their job and have not presented the part of the temporary disability. «As long as the medical report of leave is not issued, actions cannot be initiated for the suspension of the employment relationship and the recognition of the right to economic benefit for temporary disability. If the company receives a part of leave provided by the worker, it must act according to the date of withdrawal, relapse indicator and contingency that appears in it. «
The casualties due to Covid, having the same economic treatment as work accidents, something that has happened since March 2020, represent a retributive relief for those infected. The full salary of the day of the leave is borne by the employer, regardless of whether there is an effective work benefit that day. While it is the Social Security that pays the leaves the next day for an amount equivalent to 75% of the worker’s regulatory base. If coronavirus leave were paid as a common disease, the employee would not receive anything during the first three days, from the fourth to the twentieth would receive 60% of the salary and from the twenty-first, 75% of the regulatory base. In this case, although the payment is always made by the company, from the sixteenth day the salary is borne by the Social Security and the company must claim it.
The National Court rejected in May of last year –see sentence– the possibility of applying a voluntary improvement in the amount of the withdrawal by the company, a possibility contemplated by a significant number of collective agreements, to situations contemplated in article 5 of Royal Decree Law 6/2020 as a result of the Covid-19 virus, which grants exceptional consideration as a situation assimilated to a work accident of the periods of isolation, contagion or restriction in the exits of the municipality where they have the domicile of the workers as a result of the coronavirus.