March 25, 2020 SPECIAL COVID-19 ISSUE

ARGENTINA - Report #2

By: Mercedes Balado Bevilacqua, MBB Abogados, Buenos Aires

I.  Suspension of the Duty of attendance to the workplace

Due to the propagation of the coronavirus (COVID-19), on March 13, the Ministry of Labor (ML) issued Resolution No. 202/2020. The Resolution establishes the suspension of the duty to attend to the workplace (from now on "the Suspension") and the isolation of the employees who:

  1. Have symptoms related to the COVID-19, such as fever, breathing problems, cough or sore throat, among other symptoms, and who also complies with requirements mentioned in points 3 and 4 below;
  2. Have confirmation of COVID-19 infection;
  3. Have a close relationship with people with confirmed diagnosis or suspected cases;
  4. Arrive to Argentina from the risky areas (China, Japan, South Korea, Iran, Europe, United Kingdom and Northern Ireland, the United States, Brazil, Chile and countries members of the Schengen area, which includes Spain, Germany, Austria, Belgium, Denmark, Slovenia, Estonia, Finland, France, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Norway, Netherlands, Poland, Portugal, Czech Republic, Slovak Republic, Sweden and Switzerland).

The list of the circumstances (established in the Decree No. 260/2020) and of the countries, may be expanded in the future.

Below, other main aspects of the Resolution:

a)      Regarding the salaries, all employees are entitled to receive their full regular salary.

b)      The employees described above must duly inform the situation to his/her employer in detail, within a maximum period of 48 hours.

c)      Employees whose normal tasks may be carried out remotely (in isolation) must agree in good faith with their employer the conditions to render services from their home. This provision may be only applied if the employee is not infected by COVID-19 nor has any symptoms.

d)      Employers and employees must inform the National health authority of every situation related to the circumstances mentioned in the Resolution and comply with the preventive measures.

e)      Employers must take all the possible measures to maintain healthy working conditions.

f)       The provisions of the Resolution also apply to independent contractors, internships, and/or scholarships.

g)      In the event of multiple employers, the effects of the Suspension will reach the different employment agreements.

This resolution come into force on March 14, 2020, date on which it was published on the Official Gazette.

II.  Suspension of the duty of Attendance to the Workplace for Risk Groups

On March 17, 2020, the Resolution No. 207/2020 issued by the MTEySS, was published in the Official Gazette. The Resolution establishes the following:

1.) The suspension of the employees’ duty of attendance to the workplace for 14 days, for the following employees:

a) Employees who are 60 years old or more, unless they are considered “an essential personnel for the effective operation of the establishment,” which includes all employees in the health sector;

b) Pregnant employees (they may not be considered “essential personnel”);

c) Employees included in the risk groups defined by the national health authority (they cannot be considered “essential personnel”). The employees included in this category are those with:

i.  Chronic respiratory diseases: chronic obstructive pulmonary disease, congenital emphysema, broncho-pulmonary dysplasia, bronchiectasis, cystic fibrosis, and moderate or severe asthma;

ii. Heart disease: Heart failure, coronary heart disease, heart valve disease, and congenital heart disease;

iii. Immunodeficiencies;

iv. Diabetes, chronic kidney failure on dialysis or with expectations of entering dialysis in the following six months.

2.) Points a), c), f) and g) mentioned in the subtitle “I. Suspension of the duty of attendance to the workplace” are applicable.

3.) Since Resolution No. 108/2020 has established the suspension of school lessons, the absence at work of the parent or responsible adult in charge, whose presence at home is essential for the care of the child or adolescent, will be considered justified. The person reached by this provision must notify such circumstance to his/her employer, justifying the need and detailing the essential information. Only one parent or responsible person, per family, may exercise this waiver.

4.) It is recommended for employers to take the necessary measures to reduce the presence of employees in the establishment, to those essential for the proper operation of the company, adopting for this purpose the necessary measures for the implementation of home working.

III.  Duty of employers to inform the Labor Risks Insurance the implementation of Home Office

The Resolution No. 21/2020, issued by the Labor Risks Superintendent (Superintendencia de Riesgos de trabajo – “SRT”), published in the Official Gazette on March 17, 2020, established that the employers who enable their employees to work from their home (“Home office”), within the framework of the health emergency (COVID-19), must inform the corresponding Labor Risks Insurer (Aseguradora de Riesgos del Trabajo “ART”), the following:

  1. List of employees who will be rendering services under a home office regime (name, surname, labor code (Código Único de Identificación Laboral “CUIL”);
  2. Address where the tasks will be carried out;
  3. Frequency of the provision of tasks (number of days and hours per week).

In addition, it is established that Resolution No. 1522/2012 issued by the SRT, which determines employers’ duty to provide some working tools (such as 1 ergonomic chair, 1 portable fire extinguisher, 1 first aid kit, 1 mouse pad and 1 Manual of Good Health Practices in Home Office), is not applicable, in case the home office modality is implemented due to the health emergency. The possibility that the employer has of verifying the conditions of the place where the employee works, through a professional in the health area and with the employee’s consent, is not applicable either.

Mercedes Balado Bevilacqua

MBB Abogados, Buenos Aires