Author: Nicolás Grandi
Since 1 January 2022, and for almost every employee, Covid-19 is no longer considered as an “unlisted” professional disease under the terms of the Labour Risks Law No. 24,557. On the contrary, it has become classified as a “non-related to work diseases” under the terms of the Employment Contract Law (ECL), sections 208 to 212.
Among the provisions included in the ECL, it is stated that:
- Non-related to work diseases that prevent employees from providing services do not preclude the employees’ right to collect their regular salary during a period of three months, if their seniority is less than five years, and six months, if their seniority is more than five years. If the employee has family responsibilities, the periods mentioned above will be extended to six and twelve months, respectively.
- It is the employer who must pay the employee’s salary during the sick leave legal terms before mentioned, which will be calculated according to the salary that the employee was being paid when contracting the disease, plus the increases granted to those employees in the same working category during the leave. If the salary consists in variable remunerations, it shall be paid according to the average of the remunerations received in the last six months. Such salary cannot be lower than the one the sick employee would have received if he/she has not contracted the disease.
- Employees, except in cases of force majeure, must give notice of the disease and of the place where they are staying, during the first working day following to the beginning of the symptoms and/or the diagnosis. Also, they are obliged to go through a medical examination with a medical doctor appointed by the employer, if so required.
Key Action Points for Human Resources and In-house Counsel
As Covid-19 is no longer covered by the Labour Risk Law No. 24,557, the provisions of the ECL mentioned above are fully applicable in the case of sick employees who have tested positive for Covid-19. However, it must be considered that employers could reasonably require employees to work remotely, if those employees with a positive diagnosis of Covid-19 do not have symptoms, discomfort or any pain that prevents them from working normally.
Health employees and members of the security forces who are in effective service will continue to be protected by the regime of Law No. 24,557, in principle, until 60 days after the end of the health emergency. In other words, for this group of employees, Covid-19 will continue to be an “unlisted” professional disease until the end of February 2023.