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\nThe law on the prevention of occupational risks provides for how to act in the event of a "serious and imminent" risk. Reckless companies can be fined up to 187,000 euros.<\/h2>\n<\/blockquote>\n
Heavy rains and flooding are having a serious impact on the south-east of the country. In many localities, the authorities are advising citizens not to leave their homes. In fact, a good number of schools have cancelled classes due to the risk of transporting children or for fear that children might be trapped in schools. Faced with a situation like the current one, it is logical that many workers are wondering whether they are obliged to go to their workplace or, if they are already there, whether they can stop their work and go home.<\/p>\n
If they are already in the workplace<\/h3>\n
The second question is expressly provided for in the Law on the Prevention of Occupational Risks (LPRL). Article 21 of the same provides that when workers are or may be exposed to a \u201cserious and imminent risk in connection with their work\u201d, the employer must inform them as soon as possible of such danger and take the necessary measures in terms of protection. This may even go so far as to \u201cstop their activity and, if necessary, immediately leave the workplace\u201d. In these circumstances, the law prohibits the company from requiring workers to resume their activity \u201cwhile the danger persists, except in a duly justified exception for reasons of safety\u201d.<\/p>\n
But it is not only up to the employer whether an employee can leave his job. If the company does not take action, the law provides for two other options. The first is that the employee has the right to stop his activity and leave his job if he perceives that continuing to do so entails a "serious and imminent risk to his life or health." The decision can also be taken by the workers' representatives by a majority of their members. In such a case, the agreement must be immediately communicated to the company and the labour authority.<\/p>\n
In such cases, the LPRL expressly prohibits any retaliation against workers or their representatives arising from such decisions, "unless they have acted in bad faith or committed gross negligence."<\/p>\n
According to article 4.4 of the standard, a serious and imminent occupational risk must be understood as "one that is rationally likely to materialize in the immediate future and may cause serious harm to the health of workers." In this case, and given that the alert level is communicated by the public authorities themselves, workers already have an external source that certifies the certainty of the danger.<\/p>\n
If the employer tries to prevent workers from getting to safety, whether by action or omission, he will be committing a very serious offence, as defined in article 13 of the Law on Infringements and Sanctions in the Social Order. This type of conduct is subject to fines, depending on the seriousness of the acts, of between 6,251 euros and 187,515 euros.<\/p>\n
In this sense, as explained by labor lawyer Juan Antonio Salmer\u00f3n, although the law presumes that business orders are legitimate, the employee's duty of obedience has its limits in the prevention of occupational risks.<\/p>\n
When you are still at home<\/h3>\n
The answer is less obvious if the worker is not yet at work. That is, if, for example, he is at home and must decide whether to take the car to go to the office. In these circumstances, Salmer\u00f3n believes that the worker's absence will be completely justified. "This situation is not included in the law, but with all the authorities recommending that one should not travel by car unless absolutely necessary, in a red alert situation and with many roads closed or flooded, it would be enough to prove on a case-by-case basis that it is impossible to go to work or that the journey entails a high risk," the lawyer asserts.<\/p>\n
Along these lines, in 2009 the Supreme Court refused to sanction a teacher who did not go to her school due to the poor condition of the roads following a heavy snowfall. The Ministry of Education of Castilla-La Mancha had agreed to reduce her salary for "unjustified absence", however, the judges annulled this decision considering that the employee did not have to assume the "evident danger to her physical integrity" that driving entailed, even though there were no roads closed.<\/p>\n
The fact that the absence is justified or not is relevant to ensure that it does not count towards disciplinary dismissal or any other sanction within the company. That is to say, as Salmer\u00f3n points out, if, when combined with other absences, the company decides to take action against the worker, he could argue before the courts that those that had to do with rainy days should not be taken into consideration.<\/p>\n
Is there a charge for days of absence?<\/h3>\n
Although the absence is considered justified, Salmer\u00f3n states that, in his opinion, companies are not obliged to pay the day or days that the worker does not attend work due to rain, "unless otherwise established in the collective agreement. Thus, the employee can see the amount corresponding to the time he did not go to work deducted from his salary or he can be asked to make up the hours on other days. According to the lawyer, this is supported by article 30 of the Workers' Statute (ET), which determines that the worker maintains his right to salary even if he does not go to work, provided that said absence is attributable to the employer. In this case, the rain is an external circumstance.<\/p>\n
Source: El Pa\u00eds<\/strong><\/p>\n
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