Mandatory isolation has been longer than predicted by most companies. Luckily, most of our clients were able to migrate rapidly to teleworking. Teleworking will be a very valuable resource when reopening facilities and we highly recommend executing an agreement with employees, providing that such benefit is only granted while sanitary emergency is in place or for a fixed period of time. Although the restart of businesses involving reopening of facilities has not been established on a national level, we are prepared for whenever this might occur. We have organised an interdisciplinary team of specialists (including lawyers, doctors and health, safety and hygiene specialists) ready to analyse each case and assist clients with restarting their businesses. Protocols and tailor-made safety measures will be critical to ensure a safe workplace. Prohibition of dismissals for no cause or due to force majeure, as well as duplication of severance compensation provided for dismissals for no cause, have also been enacted and extended for a significant period of time. These measures have forced employers to explore other alternatives, such as agreed furloughs or agreed terminations.
Decrees, orders or guidelines in effect and pertaining to reopening facilities.
As of June 2020, Argentina is still under Mandatory Social Isolation (ASPO), with only essential activities allowed to open. Decree 297/2020, which originally established ASPO regarding essential activities, provided that employers must guarantee health and safety conditions as established by the Ministry of Health in order to preserve the health of the employees. Furthermore, the Ministry of Labour, through Resolution 202/2020, provided that employees affected by mandatory isolation, wherever possible, must render services remotely from their homes. Nonetheless, section 6 of Resolution 202/2020 compels employers to take all measures necessary, in order to ensure that the working conditions and environment meet the legal standards in accordance with the protocols established by the health authority for the Coronavirus (COVID-19) emergency. In this regard, the Superintendent of Occupational Risks has been publishing on their website, recommendations, guidelines and protocols for a safe workplace. Although no mandatory measures have been issued regarding the reopening of facilities on a national level, Decree 459/2020 provides that every province can mandate different measures required for reopening. Accordingly, pursuant to Decree 297/2020, Resolution 202/2020 and section 75 of Labour Contract Law (LCL), employers must ensure that sufficient safety measures are implemented in order to provide a healthy and safe workplace.
Optimal approach to keep track of the latest updates.
Clients are encouraged to communicate openly and continuously with their dedicated Labour Risk Insurance Company (ART).
The latest recommendations and guidelines published by the Superintendent of Occupational Risks are available at: https://www.argentina.gob.ar/srt
Also, a special section of the government’s website offers advice on COVID-19:
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
On 1 April 2020, an Emergency Assistance Program for employers and workers affected by the COVID-19 health emergency was created through Decree No. 332/2020 (Emergency Assistance Program for Work and Production, “DNU 332/2020”), which was later amended by Decree No. 347/2020 (“DNU 347/2020”) dated 6 April 2020, and Decree No. 376/2020 (“DNU 376/2020”) dated 19 April 2020. In short, the Emergency Assistance Program sets out the following benefits:
- the postponement or reduction of up to ninety-five percent (95%) of the payment of employer contributions to the Argentine Social Security System;
- the payment of a Supplementary Salary, e.g. an allowance paid by the government for workers in the private sector equivalent to 50% of the net February 2020 salary, which cannot represent less than the minimum vital salary published by the government or more than twice such minimum and vital salary, or the total February 2020 salary.
- the provision of a Zero Rate Credit for Small Taxpayers and for self-employed workers with a subsidy of one hundred percent (100%) of the total financial cost up to ARS 150,000 credited to their credit card; and
- unemployment benefits, by which workers who meet the requirements set forth in Laws No. 24,013 and No. 25,371 will have access to a financial benefit of between ARS 6,000 and ARS 10,000.
Requirements mandated by law or any official guidance.
Decree 459/2020 approved protocols by the Ministry of Health for the automotive and auto parts industry, electronics and household appliances, clothing, tobacco products, metallurgy, machinery and equipment, footwear, graphics, publishing and printing, wood and furniture, toys, cement, textile products, leather goods, tires, bicycles and motorcycles, chemicals and petrochemicals, cellulose and paper, plastics and by-products and ceramics. Decree 459/2020 also provided that each governor may establish specific protocols for each province and activity.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Main recommendations in all protocols;
- gradually reinstate employees;
- maintain the safety distance (between 1.5 and 2 meters).
- control entry of employees and suppliers;
- provide elements and equipment for personal protection;
- adequately ventilate the establishment;
- continuously inform about safety measures and provide the appropriate training;
- do not share tools or utensils;
- do not hold in-person meetings;
- clean and sanitise frequently and on a regular basis (before, during and at the end of the work day);
- provide designated isolation areas for employees with symptoms of COVID-19;
- establish and inform an action plan in case of a suspicious case of COVID-19.
Policies and procedures for telework once the business reopens.
The Superintendent of Occupational Risks (SRT), through resolution No. 21/2020 has stipulated: (i) that employers who enable their workers to perform teleworking in the context of the current health emergency must inform the Labour Risk Insurance Company (ART) affecting the payroll of workers, as to who will be rendering services from their homes, the frequency (days and hours in which they will be rendering services) and the domicile where they will perform tasks; and (ii) that Resolution 1552 SRT, which provided for the mandatory provision of certain elements relating to safety and hygiene in the workplace (fire extinguisher, mouse pad, ergonomic chair, first aid kit, etc.), will not be applicable in cases of teleworking, due to COVID-19.
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
Decree 367/2020 provided that the COVID-19 disease shall be presumed to be an occupational disease, in respect of dependent workers excluded by legal dispensation from compliance with the mandatory and preventive social isolation ordered by Decree No. 297/20, and its supplementary regulations, for the purpose of performing essential activities (“essential workers”), while the isolation measure provided for by such regulations is in force, or during any extended periods thereto. Based on the foregoing, Labour Risk Insurance Companies must provide medical assistance (for which purpose a special fund was created) to infected essential workers and will cover their salaries and medical expenses during medical leave. Finally, the Central Medical Commission will evaluate whether the disease was work related.
Regarding childcare, the Ministry of Labour provided, by means of Resolution 207/2020, that during the suspension of classes in schools, as stipulated in Resolution No. 108/2020, issued by the Ministry of Education, the leave of the parent or responsible adult in charge, whose presence in the home is indispensable for the care of the child or teenager, shall be considered justified. Employees covered by this dispensation shall: i) notify their employer that these circumstances are applicable to his/her situation; ii) justify the need for such leave; and iii) provide any relevant information which should be taken into consideration by the employer. Only one parent or responsible person per household may use this exemption.
Employees who fear infection and refuse to work.
As long as the employer provides a safe workplace, employees must return to work once the mandatory isolation period is terminated. In this regard, Section 75 of the Labour Contract Law not only compels employer to provide a safe workplace, but also allows employees to refuse to work onsite, without loss or reduction of remuneration, if an imminent danger exists and/or the employer does not adhere to, or fails to adequately provide for, the necessary safety measures.
Disclosure of employees who are infected.
Section 5 of Resolution 202/2020 of the Ministry of Labour provides that the employer must inform the Ministry of Health about confirmed and suspected cases of COVID-19, in accordance with the employer’s obligation to provide a safe workplace in order to protect the health of its employees. It is important to note, that, while employers have a responsibility to inform its workers about an employee who has been in contact with suspected or confirmed cases, including isolating the suspected employee, and in order to take the appropriate precautions and preventative measures, the employer must, at all times, handle such sensitive information with the utmost care, and keep such information strictly confidential, as such information falls under the purview of, and rights afforded by, the laws governing Data Protection and privacy.
To what extent can employers implement the following cost-reduction strategies as a result of COVID-19, and what are the primary limitations on each?
Decree 329/2020 (dated 31 March 2020) has been extended by Decree 487/2020 (currently in force until 30 July 2020) prohibits unilateral furloughs on the grounds of force majeure, lack of work or work reduced for a period of 60 days. The Decree provides one exception only, regarding furloughs covered under the terms of Section 223 bis of the LCL, which provides that, for furloughs agreed to between the employer and with each employee, respectively, or the relevant union, and approved by the labour authority for those employees who do not perform any tasks as a result of a lack of work or a reduction of work (not attributable to the employer) or force majeure (dully evidenced). Based on the foregoing, the Ministry of Labour issued Resolution No. 397/2020 for the purpose of facilitating the Ministry’s process to approve furlough agreements as such, pursuant to section 223 bis of LCL.
- Salary reductions.
Salary reductions are not permitted under local labour laws. The only alternative is to proceed with a furlough agreement (see part a. Furloughs, above).
Decree 329/2020 also prohibits dismissals: (i) without justified cause; or (ii) due to lack of work or a reduction of work, and by force majeure, for a period of 60 days (e.g. currently in force until 30 July 2020, as extended by Decree 487/2020). The Decree provides that any dismissals in breach of the provisions established in 329/2020, shall have no effect, and the labour relationship will continue in force under the same terms and conditions. Moreover, prior to the implementation of COVID-19-related measures, duplication of severance payments was enforced for 180 days, and has, just recently, been extended for an additional 180 days (Decrees 34/19 and 582/20).
- Facility closure.
While a company may proceed with the closure of its facilities, due to the prohibition of dismissals in force, the permanent closure of the company’s premises/offices would not be possible. However, the company does retain the option to execute a mutual termination of the employment agreement with each employee. In case the company faces an impossibility to continue paying salaries, the company has to go through a mandatory conciliation procedure before the Ministry of Labour, which the union and the company will be summoned to a hearing to discuss salary reductions and where the parties are encouraged to reach an agreement.
Tips, recommendations and common pitfalls.
It is highly recommendable that employers implement teleworking policies in writing. In case employees should be required to return to the office after the isolation period has ended, it is also advisable that such policies state clearly, that teleworking is intended to be an arrangement that is temporary in nature and has been adopted as a result of the public health emergency caused by COVID-19, in order to avoid the risk of an employee filing a claim in this respect, when he/she is eventually required by the employer to return to the office. We also encourage employers to explore possibilities to reach agreements on furloughs and terminations with employees and the respective representatives. Per local authorities nationwide, companies should have safety and hygiene protocols in place prior to their employees’ returning to work at the company’s facilities. We also encourage employers to develop such protocols with the assistance of an expert on matters of safety and hygiene in the workplace.