Covid-19 and Sick Leave: Can Employers Require Remote Work?

I.    Introduction

It’s January 2022. By now, many expected the Covid-19 pandemic to be over or at least to have made significant progress toward “normality.”

Different strongly-consolidated analyses and perspectives throughout 2020 projected important paradigm shifts with a natural impact on labor relations. Teleworking is certainly the main and most evident change brought on by the pandemic in employment relations dynamics.

Based on completely remote schemes or hybrid models with face-to-face and partial remote work, teleworking is here to stay, as was to be expected. On the other hand, the spread and impact of Covid-19 is not where it was predicted to be, at least for the time being.

On-site work therefore went from the exception to progressively becoming the rule again (beyond previous considerations on mixed or remote schemes); so much so that, where essential workers used to confirm the exception, in latest Decree 867/2021, the exemption has not even been extended to the most vulnerable personnel (risk groups, the elderly, etc.). In fact, there has been no regulation extending the presumption of Covid-19 as an occupational disease (except in specific cases) either.

However, as we outlined above, the progressive return to the expected “normality,” the objective on the basis of which the Argentine National Government outlined its health strategy, and based on which employers were also reestablishing their work schemes, is facing an unexpected challenge: the exponential increase in the number of positive cases.

In this context, different sources report a significant increase in absenteeism, largely caused by the unfortunate increase in the number of cases. In view of that, the question arises as to whether employers have the right to require their employees who have contracted Covid-19 to perform their duties remotely (provided that it is technically possible to do so).

The purpose of this article is to analyze the question based on labor principles and regulations, but without losing sight of the practical.

II.    First Distinction: Sick Leave vs. Isolation

For the purposes of this analysis, we must first make an important distinction.

Sick leave (occupational disease) and isolation are not synonymous. Although this may seem like a truism, we believe it is important to reinforce their difference.

The first legal devise is of a purely labor-related nature and is expressly provided for in the Labor Contract Law (articles 208 and subsequent). Specifically, Article 208 of the law guarantees workers their salary during the time they are “impeded” (we suggest remembering this word) from performing their duties, and within time limits linked to seniority and their existing family responsibilities. 

Sick leave is framed in a protective system of the psychophysical integrity of workers, allowing their recovery and preventing their disease from getting worse as a result of the performance of their tasks. 

Isolation, on the other hand, is a specific health measure, mainly aimed at preventing the spread of the virus. If the subject is infected (or is a possible carrier of the disease), the measure is intended to prevent the virus from spreading to others, i.e. the main subjects protected are the other persons who could ultimately have contact with the infected person (or possible carrier).

III.    Remote Performance of Covid-19 Positive Workers

The immediate and natural answer to the question as to whether an employer can demand, or at least convene remote performance of labor duties with their employees while they have Covid-19 is negative. This is taking into consideration that employees should be on sick leave, resting, and recovering from their disease or condition.

However, it is generally overlooked that Article 208 LCT expressly states that: “Each accident or occupational disease that prevents the rendering of service cannot affect the right of workers to receive their remuneration (...).” 

As Gabriel A. Toso (1) points out, one of the conditions for the application of the rule (in reference to Art. 208 LCT) is that the disease must be “incapacitating” which means “that it makes it impossible (for the worker) to render services.” 

Professor Mario Ackerman (2) explains this with remarkable clarity in specifying that the concept of incapacitation is linked to the very basis of the legal protection in this matter, i.e., to justify the worker’s absence with the right to receive wages, it is enough that the permanence at work jeopardizes the worker's health or possible recovery.

Professor Juan Carlos Fernandez Madrid (3) expands on these notions and, citing case law, adds: “hence the illness is configured both when there is a physical impossibility to work and in those cases in which a treatment makes it inadvisable to provide benefits.” 

In the previous section, we suggested recalling the notion of being “impeded,” and by now, the reader will surely understand the reason why we made that suggestion. The immediate and natural answer to which we alluded in the introductory paragraph of this section is missing a relevant part of the analysis: Does the disease that afflicts the worker prevent him or her from working?

The automation to which we refer when answering this question is logical, since it is unlikely that employees would inform their employers that they have contracted an illness and refrain from working if the disease did not impede them from working. In fact, it is unlikely that the disease is not followed by symptoms or ailments that make it impossible for the employee to work.

However, a particularity of Covid-19 is that there are many cases of individuals who test positive, but have or have had no symptoms or ailments. In other cases, even if they have symptoms, these do not necessarily prevent them from working.

The answer to the question that motivates this article, i.e., whether employers can require Covid-19 positive workers to work remotely depends on the specific case (as is usually the case in such matters). 

It’s a given, at least for the time being, that the Covid-19 positive worker must isolate but does not necessarily have to go on sick leave (hence the necessary distinction in section II). Covid-19 may or may not involve symptoms or ailments. In fact, this is and has been one of the main concerns surrounding the pandemic. Studies (3) indicate that patients with SARS-CoV-2 infection who report no symptoms constitute 40/45% of all infected persons. 

In this scenario of symptomless Covid-19 positive employees (e.g., who got tested to travel, had contact with an infected person, etc.), it would be unreasonable to maintain the statement at the beginning of this section, i.e., that the employer would not be able to require remote performance (provided that the nature of the worker’s tasks allows remote work).

Naturally, the most doubtful scenario is that of an employee with symptoms, but whose symptoms do not prevent the employee from receiving benefits. From a strictly technical point of view, the reasoning is the same: if not impeded from working, it is possible to require remote work. 

It is no less true that many of the symptoms or ailments vary over a few days or even hours. This is where the good faith of the parties, especially that of the worker, should prevail when determining the real possibility of rendering service.

IV.    Conclusions

The interesting analysis that motivates this article begins with a question. As is customary in the field of law, the answer to the question is not unequivocal, and requires a case-by-case review.

However, for the sake of a first approach to the subject of study and based on the considerations outlined above, we can affirm that:

a)    Workers have the inalienable right to make use of the sick leave provided for in Art. 208 of the LCT, as long as they have a disease.

b)    A necessary condition, apart from the existence of such a disease, is that it must impede them from performing their service, that is to say, that it prevents the employee from carrying out his or her tasks.

c)    Covid-19 has several particularities, among them, that it does not necessarily present symptoms or that they may vary in severity, depending on the specific case.

d)    Taking into consideration that at the time of writing this article the number of Covid-19 cases has exceeded 100,000 per day, the impact on labor relations is undisguisable, especially in terms of isolation. Therefore, it is necessary to evaluate with a legal—but also a practical—sense the different alternatives for mitigating the continued impact of the pandemic.

In short, to the extent that the employee does not have symptoms, discomfort or impeditive ailments, the employer would have reasonable and solid arguments to require that the person perform his or her tasks remotely, while remaining in isolation. This, of course, without violating other normative provisions, for example, that there is no abusive exercise of ius variandi, in relation to the tasks entrusted.

1)    Ley de Contrato de Trabajo comendada, anotada y concordada; Dir. Jorge Rodríguez Mancini, Ed. La Ley, 2007.  
2)    Ackerman Mario E., "Enfermedades inculpables", Ed. Hammurabi, 1987.
3)    Oran D.P., Topol E.J.: The Proportion of SARS-CoV-2 Infections That Are Asymptomatic. A Systematic Review, Ann. Intern Med. 2021 Jan 22: M20-6976. doi: 10.7326/M20-6976; and https://es.cochrane.org/es/news/los-infectados-asintom%C3%A1ticos-podr%C3%ADan-ser-el-40-45