COVID-19 “PERSONNEL’S LICENSE AND ABSENCES REGIME”
As it is well-known public knowledge, our country is going through a health crisis situation as a consequence of the virus called “COVID-19”. In order to prevent the spread of the aforementioned disease, the National Executive Branch has enacted a series of regulations aimed at preventing the gathering of people and the care of the so-called risk factors.
In this context, the purpose of this report is to briefly highlight the assumptions contemplated and their consequences in the workplace, to serve as a guide in the different cases that will arise.
On 12.03.20 the National Executive Branch issued Decree of Necessity and Urgency No. 260/20, by which it expanded the health emergency throughout the country as a consequence of the aforementioned pandemic.
Among other sanitary measures, in art. No. 7 compulsory isolation and the following preventive measures were established:
“1. The following persons must remain isolated for 14 days, a period that may be modified by the enforcement authority according to epidemiological evolution:
- a) Those who have the status of “suspicious cases“. For the purposes of this Decree, a person with fever and one or more respiratory symptoms (cough, sore throat or respiratory distress) and who, in recent days, has a history of travel to “Affected areas” or have been in contact with confirmed or probable cases of COVID-19. The definition may be updated by the health authority, depending on the epidemiological evolution.
- b) Those who have medical confirmation of having contracted COVID – 19.
- c) The “close contacts” of the persons included in sections a) and b) above in the terms established by the enforcement authority.
- d) Those who arrive in the country having transited through “affected areas“. These people must also provide information on their itinerary, declare their home address in the country and undergo a less invasive medical examination possible to determine the potential risk of infection and the preventive actions to be taken that must be complied with, without exception. Foreigners not resident in the country who do not comply with the regulations on compulsory isolation and with the sanitary measures in force may not enter or remain in the national territory, except for exceptions provided by the health or immigration authority.
- e) Those who have arrived in the country in the last 14 days, having traveled through “affected areas”. “Foreigners not residing in the country who do not comply with the regulations on compulsory isolation and with the sanitary measures in force may not remain in the national territory, except for exceptions provided by the sanitary or immigration authority. ”
In turn in art. 12 it was established that the Nation’s Ministry of Labor will establish the working conditions and licenses that must be met by those who are included in the provisions of article 7 of this decree, during the period established by the health authority. Special licensing regimes may also be established according to health recommendations.
On 13.03.20 the Nation’s Ministry of Labor dictates Resolution No. 202/20, by which:
Art. 2: Suspend the duty of assistance to the workplace, with full enjoyment of their remuneration, to all workers who are in the situations described in article 7 of DNU No. 260 and any other of a similar nature that in the future emanates from the health authority, regardless of the nature of the legal bond in question, considering for this purpose also those who provide services continuously under non-dependent figures such as service locations regulated by Decree No. 1109/2017, those that are developed in a similar way within the private sector, benefits resulting from scholarships in workplaces, internships and medical residences included in Law No. 22,127. In the case of multi-employment or multiple recipients of services, the effects provided for in the suspension referred to in this rule will reach the different contracts.
It is important to point out that the full enjoyment of remuneration implies the payment of the entire salary, benefits, additional and variable payments that the worker received. However, what is suspended is the duty of attendance, not the duty to work from the isolated place (logically as long as the worker is not ill, a circumstance in which the sick leave contemplated in the LCT will apply).
– The worker must reliably communicate their particular circumstances to the employer within 48 hours.
-The workers reached by the exemption from the duty of assistance to the workplace who do not have medical confirmation of having contracted COVID-19, or the symptoms described in inc. a) of article 7 of DNU N ° 260, whose habitual or other similar tasks may be carried out from the place of isolation, must, within the framework of contractual good faith, establish with their employer the conditions under which said work will be carried out.
-The employer must report to the national health authority any situation that fits within the assumptions of art. 7 of DNU No. 260/20.
On 17.03.20 the Nation’s Ministry of Labor issued Resolution No. 207/20 by which it ordered:
Art. No. 1 Suspend the duty of attendance to the workplace for a period of FOURTEEN DAYS (14) days, with full enjoyment of their remuneration, to all workers who are in the situations described in subsections a); b) and c) of this article, whatever the nature of the legal bond in question, those who provide services continuously under non-dependent figures such as the locations of services regulated by Decree No. 1109/2017 are also considered included for these purposes, those others that are carried out in an analogous way within the private sector, the benefits resulting from scholarships in workplaces, internships and medical residences included in Law No. 22,127. In the case of multi-employment or multiple recipients of services, the effects envisaged in the suspension referred to in this standard will reach the different contracts.
- Workers over sixty (60) years of age, unless they are considered “essential personnel for the proper functioning of the establishment.” All workers in the health sector will be considered “essential personnel”.
- Pregnant workers
- Workers included in the risk groups defined by the national health authority.
Aforesaid groups, in accordance with the definition in force at the day of the date, are:
- Chronic respiratory diseases: chronic obstructive pulmonary disease [COPD], congenital emphysema, bronchopulmonary dysplasia, bronchiectasis, cystic fibrosis, and moderate or severe asthma.
- Heart diseases: Heart failure, coronary heart disease, heart valve disease, and congenital heart disease.
- Diabetics, people with chronic kidney failure on dialysis or with expectations of entering dialysis in the following six months.
Workers included in sections b) and c) cannot be declared Essential Personnel.
This resolution expands the spectrum of personnel exempted from attending work with FULL COLLECTION OF REMUNERATIONS to persons at risk, in addition to all those cases supposedly carry the disease or may carry the disease (art. 7 of DNU No. 260/20).
The art. No. 2 establishes that these people, within the framework of good contract, may establish with the employer the working conditions from the place of isolation. In effect, as we mentioned, what is suspended is the obligation to go to work, not to work, with which, as far as possible, the parties must establish the way in which the personnel must continue working from the place of isolation.
The art. No. 3 provides that, while the suspension of classes in the schools, established by Resolution No. 108/2020 of the Ministry of Education of the Nation or its modifications that are dictated hereafter, the absence of the parent, or responsible adult in charge, whose presence in the home is essential for the care of the child or adolescent will be considered justified. The person affected by this dispensation must notify such circumstance to his employer, justifying the need and detailing the essential data so that adequate control can be exercised. Only one parent or responsible person, per household, may avail of this exemption.
Despite the fact that the worker must notify and prove or justify the impossibility of leaving their child alone, the truth is that the norm provides for personnel who for this reason cannot attend work that their absence will be justified, that is, it cannot be sanctioned but the days of absence are not paid (at least until another resolution does not modify it).
Last, art. No. 4 recommends employers to take the necessary measures to reduce the presence of workers in the establishment to those essential for the proper functioning of the company or establishment, adopting for this purpose the necessary measures for the implementation of the remote working mode.