Impact of the social, preventive and mandatory isolation in the scope of labor matters

1. Enacted resolutions

1.1 Argentine Executive

1.1.1 Decree 260/2020 (O.G 03/12/2020) on Public Health Emergency.

1.1.2 Decree 274/2020 (O.G 03/16/2020) Prohibition of entry into the national territory

1.1.3 Decree287/2020 (O.G 03/17/2020) on Public Health Emergency.

1.1.4 Decree 297/2020 (O.G 03/20/2020) Social, Preventive and Mandatory Isolation.

1.1.5 Decree 325/2020 (O.G 03/31/2020) extension of Social, Preventive and Mandatory Isolation.

1.1.6 Decree 329/2020 (O.G. 03/31/2020) on Public Emergency.

1.1.7 Decree 332/2020 (B.O 04/01/2020) Labor and Production Assistance Program.

1.1.8 Decree 347/2020 (O.G. 04/06/2020) Evaluation and monitoring Committee of the Labor and Production Assistance Program.

 

1.2 Chief of the Cabinet of Ministers - Secretary of Management and Public Employment of the Chief of the Cabinet of Ministers

1.2.1 Resolution (SGEP) 3/2020 (O.G 03/14/2020).

1.2.2 Administrative Decision 429/2020 (Chief of the Cabinet of Ministers) (O.G 03/20/2020).

1.2.3 Administrative Decision 450/2020 (Chief of the Cabinet of Ministers) (O.G. 04/01/2020).

1.2.4 Administrative Decision 468/2020 (Chief of the Cabinet of Ministers) (O.G 04/07/2020).

 

1.3 National Migrations Direcorate

1.3.1 Disposition (DNM) 1644/2020 (O.G 03/12/2020).

1.3.2 Disposition (DNM) 1714/2020 (O.G. 03/19/2020).

 

1.4 Ministry of Internal Affairs

1.4.1 Resolution 48/2020 (O.G 03/29/2020).

1.4.2 Administrative Decision 446/2020 (04/01/2020).

 

1.5 Ministry of Health

1.5.1 Resolution (MS) 627/2020 (O.G 03/20/2020).

 

1.6 SECLO

1.6.1 Disposition (SECLO) 2020-8551 (03/16/2020).

 

1.7 Superintendence of Labor Risks

1.7.1 Resolution (SRT) 21/2020 (O.G 03/17/2020).

1.7.2 Disposition (SRT General Management) 5/2020 (O.G 03/28/2020).

 

1.8 Argentine Ministry of Labor, Employment and Social Security

1.8.1 Resolution (MTESS) 202/2020 (O.G 03/14/2020).

1.8.2 Resolution (MTESS) 207/2020 (O.G 03/17/2020).

1.8.3 Resolution (MTESS) 279/2020 (O.G 04/01/2020).

1.8.4Resolution (MTESS) 296/2020 (O.G. 04/03/2020).

 

1. Preliminary considerations

In the labor field, many rules have been issued to regulate labor matters, national provisions regarding restrictions and preventive measures to avoid the spread of COVID-19

Several resolutions of the Ministry of Labor, Employment and Social Security (“MTESS”) that had been issued before the isolation, remain relevant only because of the references made to them by other subsequent resolutions.

For this reason, to avoid unnecessary citation we will focus on the rules that are in force, and only in those cases in which it is necessary to refer to a previous standard, will the reference be included.

You can find the legislative history by visting https://www.marval.com/publicacion/emergencia-sanitaria-argentina-decreta-aislamiento-social-e-impone-restricciones-al-transporte-13546&lang=en

 

2. The exemption of the obligation to attend the workplace

The scope of the social, preventive and mandatory isolation provided by Decree 297/2020 and extended by Decree 325/2020 is mainly regulated through Resolution 279/2020 of the MTESS, published on the Official Gazette on April 1, 2020, which derogated Resolution 219/2020 of the MTESS.

Regarding the employees reached by the social, preventive and mandatory isolation, the exemption to attend to the workplace is applicable. This waiver does not affect the right of the employees to receive their remuneration. When the duties of the employee or other similar tasks, can be carried out from the place of isolation, the employees must agree with their employer the conditions under which said task will be carried out from the place of isolation, within the context of contractual good faith.

The employers must inform the Labor Risk Insurance of the payroll of employees affected to remote work (surname, name and Single Labor Identification Code -“CUIL”-), the frequency of tasks (number of days and hours per week) and the address where the employee will be working. Resolution 1552 of the SRT dated 11/08/12 (about remote work) is not applicable to these exceptional cases included in the exceptional cases provided in the context of the health emergency.

 

3. Employees considered essential

Resolution 279/2020 of the MTESS establishes that employees who provide services in the activities excempted from the fulfillment of the social, preventive and mandatory isolation and the prohibition to circulate (Section 6 Decree 297/2020), will be considered “essential personnel”. To access the list of essential personnel please visit https://www.marval.com/publicacion/ampliacion-del-listado-de-actividades-y-servicios-declarados-esenciales-en-la-emergencia-13582&lang=en

In order to define the scope of this category of employees, the resolution refers to Resolution 207/2020 of the MTESS (prior to the mandatory isolation), which qualified as “the essential personnel for the proper functioning of the establishment”.

As a general principle, essential employees must attend their workplace and follow the recommendations set forth in Provision 5/2020 of the SRT General Management (O.G 03/28/2020).

However, regarding certain essential employees, the cases of suspension of the duty of attendance also applies (pursuant to Section 7 of Decree 260/2020 and Section 1 of Resolution 207/2020 of the MTESS), namely:

 

1. “Suspicious cases”, that is, people who have a temperature and one or more respiratory symptoms, such as cough, sore throat or respiratory distress; and also who in recent days have a history of travel to “affected areas” or have been in contact with confirmed or probable cases of COVID-19.

 

2. Close contacts with “suspected cases” or with those who have medical confirmation of having contracted COVID-19.

 

3. Pregnant women.

 

4. Employees included in the high risk groups as defined by the national health authority. Such groups, in accordance with the actual definition, are: chronic respiratory diseases: chronic obstructive pulmonary disease [COPD], congenital emphysema, bronchopulmonary dysplasia, bronchiectasis, cystic fibrosis, and moderate or severe asthma; heart disease: heart failure, coronary heart disease, heart valve disease, and congenital heart disease; immunodeficiency; diabetics, people with chronic kidney failure on dialysis or with expectations of entering dialysis in the following six month; people with immunodeficiency: congenital, functional or anatomic asplenia (including sickle cell anemia) and severe malnutrition; HIV, depending on the status (< 350 CD4 or with detectable viral loa; people with immunosuppressive medication or high-dose corticosteroids (greater than 2 mg/kg/day of methylprednisone or more than 20 mg/day or its equivalent for more than 14 days); oncology and transplant patients: with oncohematological disease up to six months after complete remission, with a solid organ tumor under treatment, transplanted with solid organs or with hematopoietic precursors and people with a single certificate of disability.

 

Medical personnel may prescribe to employees that they do not have to attend to the workplace with the sole mention that they are included in the “risk group” without need of informing the medical condition they have (Section 7 of Resolution 627/2020 of the Ministry of Health (O.G. 03/20/2020)).

Pregnant employees and high-risk groups cannot be considered essential personnel.

 

4. Persons in charge of school-aged minors – Justified absence

In any case, due to the suspension of the teaching of face-to-face classes, arranged by the Ministry of Education until 03/31/2020 through Resolution 108/2020, those who are in charge of caring for school-aged minors will have justified absences from their job positions.

In contrast to the cases mentioned above, there is no exemption from the duty of attendance or license, but justified absence.

Even though the rule is not completely clear about the payment of remunerations, we consider that a harmonic interpretation could be that the employee is entitled to receive the basic salary, but not necessarily the additional items that could correspond to the normal development of their work. This should be analyzed on a case-by-case basis. 

Employees in this situation must notify such circumstance to the employer, explaining the need and detailing the indispensable information to exercise the appropriate control. Only one parent or responsible person per family group should require this situation.

 

5. Recommendation to implement home office policies

Prior to social, preventive and mandatory isolation, Resolution 207/2020 of the MTESS (O.G 03/17/2020) recommended employers to decrease the presence of the employees in the establishments and only require the presence of indispensable persons for the functioning of the company, by adopting the necessary measures for the implementation of the home office modality

Currently, this recommendation is still valid for activities considered essential.

 

6. Ius variandi prerogative

The faculty to reorganize the working day to guarantee the continuity of essential services will be considered a reasonable exercise of the “ius variandi” prerogative when such faculty is exercised in order to guarantee the continuity of production in adequate health conditions in accordance with the policies established by the health authority.

 

7. Hiring of temporary personnel

As long as the social, preventive and mandatory isolation lasts, the hiring of personnel to guarantee the continuity of essential services should be considered extraordinary and temporary under the terms of Section 99 of the Labor Contract Law (on temporary work).

 

9. Independent contractors’ situation

Resolution 202/2020 of the MTESS (O.G 03/14/2020) and also then Resolution 279/2020 of the MTESS included in the group of exempted employees from the duty of assistance to the workplace those who continuously provide services under non-dependent figures (service locations, interns, scholarships, etc.).

 

10. Confirmed cases of COVID-19

When it has been confirmed that the employee is actually infected with the virus, the case would be framed by the general regime of non-labor related sick leave (Sections 208 to 213 of the LCL). Thus, the employee is entitled to a paid leave for 3 months if the seniority is less than 5 years or for 6 months if the seniority is greater. The leave will be duplicated is the employee has family dependents.

If the employer dismisses the employee during the period of paid non-labor related sick leave, the employer must pay, in addition to the compensation for unjustified dismissal, the corresponding salaries for all the time left until the expiration of the leave.

The employer is entitled to exercise medical control, although with serious difficulties to materialize it in the current context, which adds up to the obligation of employers and employees to report it to the Argentine health authority.

According to Resolution 202/2020 of the MTESS, employers and employees must report to the Argentine health authority any situation framed under Section 7 of Decree No. 260/2020 (“suspicious cases”, people who have recently travelled to “affected areas” or have been in contact with confirmed or probable cases of COVID-19, close contacts with “suspicious cases” or with those who have medical confirmation of having contracted COVID-19).

 

11. Suspensions without salary payments and dismissals – Prohibition

Decree 329/2020 prohibited dismissals without just cause and dismissal and suspensions for the reasons of lack or reduction of work and force majeure within the term of sixty (60) days as of March 31, 2020,

Dismissals and suspensions taking place during the prohibition will not have any effect, keeping the existing labor relations and their current conditions in force.

The decree establishes that suspensions under the terms of Section 223 bis of the LCL are exempt from this prohibition.

However, said Section does not establish an autonomous case of suspension of the employment contract. It provides that, in cases of lack or reduction of work not attributable to the employer, or duly verified force majeure, the employer and the employee may agree non-remunerative allowances in money in compensation for suspensions of the labor relationship individually or collectively, which must be approved by the enforcement authority. Said allowances will be considered “non-remunerative benefit”, which will only be subject to contributions related to Healthcare Coverage and the Argentine Health Insurance System. In this context, our interpretation of the decree is that the government’s intention is to allow the suspension of employment contracts to the extent that the requirements of Section 223 bis of the LCL for the determination of non-remunerative assignments are met (which is, individual or collective agreement, and approval by the enforcement authority).

 

12. The possibility of bringing forward the date of vacations

Many companies have also analyzed the possibility of granting vacations to their employees during the social, preventive and mandatory isolation.

However, Resolution 279/2020 of the MTESS clarifies that the prohibition/abstention from attending work does not mean having vacations, holidays or rest.

 

13. Relation with unions

We have noted cases in which unions representing employees of essential activities excepted to comply with the social, preventive and mandatory isolation, have claimed that they must also be isolated and decided not to attend their workplace. The MTESS has accepted at least one complaint from a company deciding that the employees’ refusal to provide services represents a direct measure, and ordered mandatory conciliation (that is, ordering the union to cease the direct measure and the employees to return to their workplace).

Furthermore, it is expected that new conflicts may arise as the economic impact derived from the global situation worsens.

 

14. Benefits for employer

Beyond certain particular benefits for certain activities or industries, by means of Decree 332/2020 the Argentine Executive created the Emergency Assistance Program through which certain benefits were established for employers and employees affected by the health emergency. The operability of said program is subject to regulation by the Chief of Cabinet of Ministers, the Argentine Tax Authority (AFIP) and eventually the Ministry of Labor, Employment and Social Security. https://www.marval.com/publicacion/programa-de-asistencia-de-emergencia-al-trabajo-y-a-la-produccion-13580&lang=en

 

The employers included will be those that comply with one or more of the following requirements:

 

1. economic activities that are critically affected by the geographical areas where they are carried out; and/or

 

2. those who have a significant number of employees infected with COVID 19 or who must remain in mandatory isolation or with work exemption (e.g. risk group, or in the care of minors); and/or

 

3. those with significant reduction of their sales after March 20, 2020.

 

In principle, employers whose activities are essential are excluded from this program. However, they may submit to the Chief of the Cabinet of Ministers a request to access these benefits, if there were special circumstances that would have caused a high negative impact on the development of their activity or service.

Among the benefits contemplated by the program, the following stand out:

 

1. Social security benefits: Postponement of maturities or reduction of employer contributions to the Argentine Integrated Social Security System.

 

2. Compensatory Allowance: payment of a Compensatory Allowance for companies with up to 100 employees, by ANSES, for a maximum value of a minimum wage.

 

3. REPRO (“Productive Recovery Program”): payment of a non-contributory allocation regarding the Argentine Integrated Social Security System of a minimum of ARS 6,000 and a maximum of ARS 10,000, for companies with more than 100 employees.

 

Companies must provide the AFIP with the list of the personnel reached and the impact on the activities achieved, and the Ministry of Labor, Employment and Social Security will consider the information and documentation sent by the company. Additionally, said Ministry may (i) gather additional information that will allow expanding and/or verifying those initially provided and request the documentation it deems necessary, and (ii) arrange for evaluation visits to the establishment's headquarters, to ratify and/or rectify conclusions.

Through Decree 347/2020 (O.G 04/06/2020), the Argentine Executive created the Evaluation and Monitoring Committee of the Emergency Labor and Production Assistance Program, which will analyze the impact of the palliative measures carried out and will determine if it includes more companies within the benefits program established in Decree 332/2020.

The Committee will be formed by the ministers of Productive Development; Economy; Labor, Employment and Social Security, and by AFIP.

The functions of the Committee will be:

 

1. Define the relevant facts that justify the inclusion of the beneficiary subjects in the assistance program.

 

2. In relation to subsection a) of Decree 332/2020 (Critically affected economic activities in the geographical areas where they are carried out), to rule on the situation of the different economic activities and to recommend or advise against their inclusion and to rule on specific requests that require special treatment and to recommend or advise against their inclusion.

 

3. Propose to the Chief of the Cabinet of Ministers all the measures he deems conducive in order to achieve greater efficiency in meeting the program's objectives.

 

15. Circulation certificate

Because of the repeal of Resolution 219/2020 of the MTESS, the employer is no longer obliged to provide employees with a certificate enabling them to circulate.

Since April 6, 2020, the essential workers included in paragraphs 7, 10, 11, 12, 19, 20 and 23 of art. 6 of Decree 297, must have the “Unique Enabling Certificate for Circulation - Emergency COVID-19”, approved by Resolution No. 48/2020 of the Ministry of the Interior (Administrative Decision No. 446/2020 of the Head of the Cabinet of Ministers ).

The employees included in paragraphs 1, 2, 3, 4, 5, 8, 9, 13, 14, 15, 16, 17, 18, 21 and 24 of Section 6 of the Decree, must prove their condition through “the formalities that the competent jurisdictions and authorities establish”.

Through the following link of the Argentine government, it is possible to access the list of mobility permits for people exempt from the social, preventive and mandatory isolation, with a detail of the documentation required in each case:

 https://www.argentina.gob.ar/coronavirus/aislaciones/aclaraciones/permisos

 

16. Expatriate Employees

Those employers who are about to start the procedure to hire foreign employees must postpone it until the possibility of applying for visas and residences is enabled again, both at consulates and locally.

Through Resolution 1714/2020 of the National Migrations Directorate, effective as of March 17, 2020, the validity of temporary residences, transitory residences, precarious residences and registration before the RENURE is extended for 30 days.

In practice, those visas and employee residences (including precarious residences) that have expired after March 17 will be valid for an additional 30 days from their expiration, so it will not be necessary to suspend employment contracts.

As in normal circumstances, such asbefore the emergency decree, if a foreigner is working without the appropriate immigration status, the migration authority can impose fines on the employer of up to fifty (50) minimum wages.