The new Law 4/2023, known as the Trans Law, and in force since Thursday, March 2, imposes new obligations for companies with more than 50 employees, such as the need to have a specific protocol to avoid discrimination against workers who be lesbian, gay, trans, bisexual and intersex (LGTBI) and their families, which must be negotiated with the workers’ representatives.
This protocol must be agreed and operational within one year and must include all the measures and resources offered by the company to guarantee equality for the LGTBI collective, as well as the measures that the company would put into practice to prevent, detect and act in the event of a case. of harassment or violence against these workers. This group will also have priority when it comes to benefiting from the active employment policies of the Public State Employment Service (SEPE), as this newspaper has already reported.
In addition to this specific protocol, companies must modify their equality plans. “In the elaboration of the equality and non-discrimination plans, trans people will be expressly included, with special attention to trans women,” says Cuatrecasas, which implies that all those companies that have already agreed and registered their Equality Plan must reopen its dialog table to modify it.
The equality plans, which are mandatory for all companies with more than 50 employees, continue to suffer a major collapse, since the law that regulated them stipulated that in companies that did not have legal representation of the workers, the plans could not be negotiated with an ad hoc commission of employees, but it was necessary to have the most representative unions in the sector. However, the UGT and CCOO did not have enough personnel to attend to all the negotiations, which is why a bottleneck was generated last year that has not yet been solved.
To this problem of collapse will now be added the task of modifying the already closed plans to include the LGTBI collective. In order to make companies aware of the measures and what scope they should have, the Ministry has committed to developing a regulation.
Another novelty included in the law is that “any decision that affects a person with an altered sexual identity must have a clear objective justification,” explains Cuatrecasas, “under penalty of risk of being declared invalid due to discrimination.” In fact, it specifies that companies cannot discriminate against workers because of their “sexual orientation and identity, gender expression or sexual characteristics”, very broad and unclear concepts for the lawyers consulted by this means.
The Garrigues Labor team recalls that the regulation “establishes a list of violations in matters of equal treatment and non-discrimination based on sexual orientation and identity, gender expression or sexual characteristics, which are classified as minor, serious and very serious depending on the nature of the breached obligation. Fines can reach up to 150,000 euros”.
In addition, with regard to childbirth permits, a new paragraph is included in article 48.4 of the Workers’ Statute specifying that “the term biological mother also includes pregnant transgender people”.
In addition to the Trans Law, the reform of the Organic Law 2/2010, of March 3, on sexual and reproductive health and the voluntary interruption of pregnancy, known as the Abortion Law, also includes important legislative developments for companies.
For example, the right to a special situation of leave due to temporary disability (IT) is recognized: for women with painful periods -the subsidy will be paid by Social Security-; to pregnant women from the first day of the 39th week of gestation and, in the case of voluntary or involuntary abortion, while the worker receives health care from the Public Health Service and is unable to work. In these last two cases, the company will pay the full salary on the day the leave is requested and, from the following day, the affected party will receive a Social Security subsidy.
The Employment Law has also brought important innovations for companies such as the commitment to communicate to SEPE the positions that have vacancies; reinforces the role of the Inspection in collective agreements -as agreed by the Ministry of Labor with Bildu-, and stipulates for the Public Administrations the non-attachment of the Minimum Interprofessional Wage (SMI), which will be the minimum amount exempt from being repossessed
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