Can the company force me to work in full DANA? Can I be fired if I refuse to go to work? This is what the Law says

“I call to respect the law and preserve the lives of workers.” With these words, the second vice president of the Government and Minister of Labor, Yolanda Díaz, issued a warning to businessmen this Wednesday morning, marked by the devastating consequences of DANA.

The vice president has announced that the Ministry will deploy to the Labor Inspection in the affected areas to be vigilant against possible non-compliance in terms of occupational risk prevention today and during the coming days and has asked the workers “not to be afraid in any way.” “No one has to work taking a risk in their life”he insisted.

Can the company force workers to go to work in full DANA? And can you fire a worker if they refuse? The answer to both questions lies in the labor regulations. Specifically, in Law 31/1995, of November 8, on the Prevention of Occupational Risks. And more specifically, in its article 21, titled ‘Serious and imminent risk’.

This section establishes that “when workers are or may be exposed to a serious and imminent risk during their work”, the employer will be obliged to inform the staff, adopt measures and instructions so that they can interrupt the activity “in case of serious, imminent and unavoidable danger” and even, if necessary, leave the workplace “immediately”. In this case, it establishes that “workers cannot be required to resume their activity while the danger persists.”

Furthermore, section 1 of article 14 of the same Law determines that “The worker will have the right to interrupt his activity and leave the workplaceif necessary, when he considers that said activity entails a serious and imminent risk to his life or health.” And remember that the workers’ representatives can agree to “the cessation of the activity” if the employer does not take the appropriate measures.

Now well. Can the situation that caused the DANA be considered to fit within this concept of “serious and imminent risk”? The experts consulted by EL MUNDO point in that direction. Fabián Valero, partner and labor lawyer at Zeres, explains that “the consideration of serious and imminent risk is a subjective assessment of the worker”, but, in his opinion, in this case it is quite clear. “The company can claim that the risk perception is exaggerated, but when there is a weather red alert of these characteristics and such serious physical and material consequences are being seen, the situation fits perfectly into that concept of serious and imminent risk“, he states.

Even though the Civil Protection alert, in this case, came when there were already flooded towns, labor activists agree that the risk to the workers’ health was evident in this DANA. Let us assume, therefore, that companies cannot force workers to go to work centers in the most affected areas if these circumstances arise that clearly threaten their health. And can they fire anyone who refuses to work? The same Occupational Risk Prevention Law warns that “workers or their representatives may not suffer any harm resulting from the adoption of the measures” mentioned.

“The company can accuse the worker of abandoning the job and sanction him with suspension of employment and salary for one day, for example, but not fire him,” says Valero, who, in any case, considers “it is quite debatable whether a judge understands that we are facing an undue abandonment of the position”. There may also be other consequences, such as the fact that a worker suffers a permanent injury due to having to travel to the job. “In that case, the company could be forced to pay a benefit surcharge for a violation of security measures,” warns the labor activist. Another example: if a worker loses his vehicle as a result of a trip in the middle of DANA, “a claim for damages for property damage could be filed,” he adds.

And what other consequences do business owners face? In accordance with the Law on Infringements and Sanctions in the Social Order, companies that commit serious infractions regarding the prevention of occupational risks face sanctions of between 2,451 and 49,180 euros. And in the event that the Labor and Social Security Inspection classifies the violation as “very serious”, the fines rise from 49,181 euros to 983,736 euros. That is to say, almost one million euros in the case of the most serious breaches. “If there is a serious and imminent risk, the sanction can be classified as very serious,” sources from the Ministry of Labor warn.