BackCORONAVIRUS: ITS EFFECTS ON THE WORKING RELATIONSHIP

17.03.20
CORONAVIRUS: ITS EFFECTS ON THE WORKING RELATIONSHIP

We are living days of great uncertainty, exposed to a lot of information that is not always correct and also varies every hour, that makes that any approach to the issue of Coronavirus (Covid-19) should be approached with great caution, responsibility and also clarifying that because it is in continuous evolution, it is impossible to ensure that the solution we give today to a specific situation, remains the same tomorrow, within a week or much less in a month.

In addition to the impact on a sanitary level, on the health of the population, there is another already known, which is the impact on the economy at a global level, although it is still impossible to know the real impact that this will have, the measures that governments are adequately taking throughout the world will inevitably lead to a great slowdown or recession in the economy. The new economic situation will also bring consequences for labor relations, which we cannot yet assess in full.

Within this framework, we offer you some reflections and advice on the impact that this pandemic has worldwide over domestic labor relations and the measures that the employer can and should adopt, as well as the handling of certain specific situations. Any analysis on the subject must start from the premise that it is the responsibility and obligation of the employer to ensure the health and safety of workers, as well as to ensure a safe workplace free from risks to the health of the employee. Starting from this rule of legal origin, we understand that each company should differentiate at least three phases or stages according to the progress of the disease at the national level and the company in particular, establishing a protocol of action in this regard.

Having a pre-established response to each case, providing certainty to employees will be a crucial factor. It is important that the company communicates the existence of this protocol to its employees, so that they can fulfill their labor obligations with the assurance that the company also complies with the obligation to ensure their health and seeks to have the situation under control. In this sense, we understand that a first stage would be when cases of Coronavirus have already been detected in Uruguay, but its circulation is not yet common, being isolated cases, and there are no cases detected within the company.

During this first stage, the labor relationship is practically without consequences, that is to say, the obligation of the employees to attend to work normally continues. However, based on the obligation to ensure the health of the employees, it is essential that the company takes extreme hygiene measures. These are, by way of example: providing alcohol gel at the entrance, in the sanitary services and in the company canteen; upgrade cleaning to an extreme and disinfection of the cutlery, glasses and plates if they are provided or if the company is responsible for their cleaning; disinfection of the workplace at least once a day; placing visible signs with the recommendations of the Ministry of Public Health to prevent the spread of the disease. Likewise, in those companies where the public is served, it is advisable to consult an occupational physician about the precautions to be taken by the personnel. Beyond this, it seems reasonable to provide masks, as well as to avoid crowding, for example by reducing the number of people in the premises, according to the square meters of the premises.

Also at this stage, it is advisable, although not required, that those employees who can do their work from home (teleworking) do so, coming to the company as many days a week as necessary; also postponing meetings that are not urgent, or conducting them by teleconference or any other technological means. At this point we would still be at a warning stage but not on an alert one, so these measures are recommended but not yet required or mandatory, so it is up to the criteria of each employer based on their possibilities. In any case, these measures may be appropriate in the case of people who, for reasons of age, pregnancy or pre-existing diseases, are considered to be high-risk population. In these cases, the possibility of teleworking becomes an obligation for the company, insofar as it is possible. In addition, at this stage, the possibility may be considered that, by mutual agreement between the employee and the employer, they may determine the use of the regulatory annual leave, for those cases that, without being sick or in quarantine, are considered a high-risk population and the possibility of working from home does not exist.

 


A second phase could be identified as that in which there is already a normal circulation of the virus in our country or in the Department where the company is located; and/or when in the company there is at least one case of confirmed Coronavirus among its employees or in any person who habitually attends the company. At this stage, the obligation to go to work is still in force, but in return, the obligation to watch over the health of the employees requires that the necessary measures to prevent the contagion be further emphasized. For this reason, at this stage, all non-urgent meetings should be suspended; lunch shifts should be organized, avoiding the concentration of people; distance working should be encouraged for all employees as far as possible; all staff should be provided with masks; hygiene and disinfection measures in the workplace should be taken to the utmost; etc.

Employees who are ill or quarantined by their doctor or by the MSP (Ministry of Public Health) may not go to work and must rest at home or in hospital. Employees in quarantine must be admitted to the insurance for common health, or the special regime established by the government for these cases, within the next few hours. In this case, the employment relationship is suspended as with any common illness, the employee stops receiving his salary and receives the corresponding subsidy from the BPS (Social Prevision Bank). The coronavirus is not currently included in the list of occupational diseases recognized by the BSE (State Insurance Bank), so it would in no way be covered by insurance against accidents at work and occupational diseases, even if it had been contracted during a business trip.

Finally, a third stage would be that by order of the Executive Branch, within the framework of the powers granted by the National Emergency System Act (No. 18,621), the closure of the company or the suspension of activities in a certain sector is determined, for example what has already happened with the suspension of classes at all levels. Something similar could happen with premises where large numbers of people usually attend on a daily basis. In this case, the company would be obliged to close its doors so that if it could not offer all its employees the possibility of working remotely, it would have the possibility of sending them to temporary unemployment insurance so that they would not have to continue paying wages for the period of time that the company remains closed, a measure that can be applied at any time in the event of a significant drop in activity, which would force it to close its doors or reduce its payroll. This solution applies as long as the government does not establish a specific solution different from that of unemployment insurance.

In the midst of all these situations, an infinite number of different cases may arise that the company will have to face and resolve by applying the principle of reasonableness that prevails in labor law. For example, the situation of those employees who, without being sick or in quarantine, are prevented from going to work due to the unexpected closure of the educational institution where their minor children attend. Obviously, there is no possibility in this case of applying a disciplinary sanction to an employee who is prevented from going to work for a reason of force majeure, much less of applying the figure of abandonment of work. There is not a single solution for all cases but, using the various tools provided by labor law and common sense, the best possible solution to this unprecedented situation must be sought for each case.

Dr. Juan Felipe Orticochea