These are the new pieces of labor legislation in the Employment Law, the Law for real and actual equality of transgender and LGBTI people, and the Law on sexual and reproductive health

1. EMPLOYMENT LAW

The Employment Law (Law 3/2023 of February 28, 2023) sets out the rules on public employment policies, and regulates the set of structures, resources, services and programs in the Spanish Employment System.

Its aim is to contribute to the creation of employment and reduction of unemployment, enhance employability, narrow structural gender gaps and drive social and regional cohesion.

The State Public Employment Service becomes the Spanish Employment Agency and a number of commitments are laid down that have to be accepted by the people, businesses and other employers using the employment services, to be able to access the guaranteed services. These commitments require them to (i) cooperate actively with the public employment services in planning training activities, (ii) disclose any vacancies they have, on the terms that will be determined by regulations, and (iii) cooperate with enhancing the employability of workers.

As an exception and until the youth and woman unemployment rate is on a par with the total unemployment rate, it is allowed to create specific working and employment terms and conditions for women and young people with the aim of ensuring real and actual equality with respect to accessing and sustaining jobs for people falling into these categories, provided there is objective and reasonable justification for them, and this cannot be considered discriminatory.

The law also makes amendments to the Workers’ Statute:

• It places a restriction on attachment of the minimum wage (SMI) with respect to either its monthly or annual amounts.
• It states that, in collective layoffs, the labor and social security inspectors will issue a report in which, together with examining factors relating to the notice and holding of the consultation period, they will give their findings as to the existence of the grounds alleged by the company in its initial notice and will confirm that the documents filed by the company are in line with those required for the ground concerned.

Lastly, the ex officio procedure before the Labor Courts, derived from communications from the Labor Authority, which entailed the suspension of the administrative procedure is repealed (art. 19 of Royal Decree 928/1998) is also repealed and article 148.d) of the Law Regulating the Social Jurisdiction, which regulated the aforementioned ex officio procedure, is abolished. As a transitional regime, the aforementioned ex officio procedure will continue to be applicable with respect to those claims whose admission for processing has taken place prior to the entry into force of the regulation.

The law enters into force the day following the date of its publication in the Official State Gazette, i.e., on March 2, 2023.

2. LAW FOR REAL AND ACTUAL EQUALITY OF TRANSGENDER PEOPLE AND TO GUARANTEE THE RIGHTS OF LGBTI PEOPLE

The purpose of Law 4/2023 of February 28, 2022 for real and actual equality of transgender people and to guarantee the rights of LGBTI people is to guarantee and promote the right to real and actual equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) people, as well as for their families.

The main new pieces of labor legislation are as follows:

• Including “sexual orientation and identity”, “gender expression” and “sexual characteristics” among the possible grounds for discrimination of employees.
• Setting out a range of infringements in relation to equal treatment and non-discrimination based on sexual orientation and identity, which are classed as minor, serious and very serious by reference to the nature of the breached obligation. The fines may be up to €150,000.
• Imposing on companies with more than 50 workers the obligation to have, within twelve months from the law's entry into force, a planned set of measures and resources for achieving real and actual equality for LGBTI people, which includes a procedure for dealing with harassment or violence directed at LGBTI people.
               
  To perform this obligation, the measures must be negotiated through collective bargaining and agreed with the workers’ statutory representatives. The contents and scope of those measures will be implemented by regulations.

The law enters into force the day following the date of its publication in the Official State Gazette, i.e., on March 2, 2023.

3. LAW ON SEXUAL AND REPRODUCTIVE HEALTH AND VOLUNTARY TERMINATION OF PREGNANCY

Organic Law 1/2023 of February 28, 2023, amending Organic Law 2/2010 of March 3, 2010, on sexual and reproductive health and voluntary termination of pregnancy recognizes the right to special sick leave (temporary incapacity) for nonoccupational contingencies:

• In cases where women have incapacitating periods.
                
  During this special sick leave, the subsidy will be paid out of social security funds starting on the first day off work.
• In cases relating to a worker’s pregnancy, from the first day of week 39 of the pregnancy.
• In cases of voluntary termination or miscarriage while the worker is receiving medical care from the Spanish public health service and is unable to work.
                      
  In these last two cases, the subsidy will be paid out of social security funds from the day following the first day off work, and the employer has to cover the worker’s full salary on the first day off work.

The law enters into force the day following the date of its publication in the Official State Gazette, i.e., on March 2, 2023. However, the three new pieces of legislation described in this alert will come into force three months after their publication in the Official State Gazette, namely, on June 1, 2023.