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Mercedes Balado Bevilacqua
MBB Balado Bevilacqua Abogados, Buenos Aires
mercedes.balado@baladolaw.com.ar

Analía Durán
MBB Balado Bevilacqua Abogados, Buenos Aires
analia.duran@baladolaw.com.ar

Introduction

The Covid-19 pandemic has taken the world by surprise, changing every area of our lives dramatically. The world of work has been shaken. In Argentina the pandemic triggered protection for employees framed as at-risk groups, assistance for employers to enable them to continue paying salaries and acceleration of digital development to adapt tasks to home office modality.

Argentine scenario in the face of Covid-19

In general terms, the Argentine government rapidly decided to grant the special protection of waiver from duty of attendance with full salary to elderly workers; pregnant female employees; employees with underlying health conditions and employees with children attending school, for whom they must care. The government also determined that any essential workers with Covid-19 would be covered by insurance against work-related illnesses and diseases. For employers, the government introduced several assistance packages, one of these being a grant to the value of 50 per cent of employees’ salaries, up to a set limit.

On 19 March 2020, through Urgent Decree ('DNU') No 297/202 the government established, as its first measure, Mandatory, Social and Preventive Isolation (‘the Isolation’) for all citizens of the Argentine Republic and for all those staying temporarily in the territory.

Initially, and by means of the aforementioned DNU, all citizens were obliged to refrain from attending their workplace and travelling on roads and through public spaces. They were only allowed to leave their homes to buy food, medicines or cleaning supplies, except for essential workers (among others, workers related to the food, internet, health industries, police officers, post etc, further described below). Essential workers needed to gain a special permit that would allow them to travel around, use public transport and attend their workplaces. Strict police control was installed in the streets and highways to control the circulation and ensure citizens did not break the rules.

This strict situation was enforced for several months. Certain activities then became more flexible. However, the prohibition on travelling around remained; in order to do so, workers must process an enabling certificate. The government is trying to boost the economy by means of a ‘reopening plan’, especially in Buenos Aires, where there is a concrete, staged plan for reopening certain activities, such as running, visiting hair salons and eating outdoors, all with special protocols. Unlike Buenos Aires, these activities remain unauthorised in other regions. The aim of reopening is to minimise the already very negative consequences for the local economy, since Argentina does not have the same economic possibilities of granting sufficient assistance as may be the case for other countries in Europe or for the United States.

Within this scenario, and under the circumstances described, employers have had to introduce homeworking and adapt their businesses dramatically. With regard to those employees whose work is essential, the government’s aim was to protect workers considered to belong to ‘risk groups’.

According to Administrative Decision No 390/2020,^[1] the following groups of workers are exempt from complying with the duty to attend the workplace, even if they are considered essential employees:

• people who are 60 years old or more;
• pregnant employees, and
• people included in the at-risk groups.

In view of this, section 25 of DNU 641/2020^[2] establishes that people over the age of 60 face greater mortality risks with Covid-19. This is the reason why such an exception was stated. The same protection is foreseen for pregnant women, as the foetus can be infected if the mother is.

According to Resolution No 627/2020,^[3] issued by the Ministry of Health, the people included in the at-risk groups are:

• people with chronic respiratory diseases;
• people with heart disease;
• diabetic people;
• people with chronic kidney failure on dialysis;
• people with immune deficiencies;
• cancer and transplanted patients; and
• people with a disability certificate.

The measures mentioned above were taken by the government considering the Inter-American Convention on Protecting the Human Rights of Older People (ratified by Argentina in 2017).

Thus, it is clear that to keep these group of workers healthy has always been the government’s major concern.

In order to prevent a total collapse of the economy and the health services, DNU No 297/2020 established ‘essential activities’, which are exempt from complying with the Isolation. These include the following:

• the activities of health care personnel;
• digital and telecommunication activities;
• essential cleaning services;
• maintenance of basic services;
• public transport, for essential workers only (all activities allowed to reopen but which are not considered essential are forbidden to use public transportation and employers must provide private transportation at the employer’s cost);
• postal and package distribution services;
• delivery of essential products;
• the activities of supermarkets, mini-markets, pharmacies, hardware stores, vets and provision of gas;
• the activities of industries related to food, personal hygiene, cleaning, medical equipment, medicines, vaccines and other sanitary supplies, and their production chain and supplies; and
• bank activity.

It is important to highlight that Argentina, in line with International Labor Organization (ILO) Convention No 102, Social Security (Minimum Standards) ratified by Argentina in 2011 (Law No 26678), and also following suggestions of ILO Convention No 121 (which was not ratified by the Argentine government), Covid-19 will presumptively be considered a professional disease regarding workers accomplishing duties declared essential and exempted from compliance with social, preventive and mandatory isolation. Additionally, insurance for work related-accidents and professional disease may not reject the coverage of contingencies and must adopt the necessary precautions so that, upon becoming aware of the complaint of labour misfortune accompanied by the corresponding confirmed diagnosis, issued by a duly authorised entity, the worker or the injured worker receives, immediately, the benefits provided for by Law No 24557, as further amended and regulated including medical assistance, treatment, medicines and monetary payments.

As for the protection of employment, the government, by Decree No 329/2020 (further extended by Decrees No 487/2020 and No 624/2020), established the prohibition to dismiss without cause or due to force majeure or to suspend employees due to lack or reduction of work or for reasons of force majeure. Currently, this measure is still in force until 29 September 2020, with a high chance of being extended due to the protective nature of Argentine regulations.

The only available option valid is to impose suspensions of personnel due to economic causes under Section 223 bis of the National Employment Law (or ‘NEL') with payment of at least 75 per cent to 80 per cent of gross monthly salary, with the express consent by written agreement of affected employees.

Any termination without cause, based on force majeure or suspension carried out in violation of these prohibitions, will be of no effect and the employment relationship will remain in force, as well as the labour conditions. Therefore, the authorities may establish that the employer must reinstate the employee, pay the accrued salaries and applicable interests and comply with the withholdings and contributions to the Social Security System.

As the final point, related to the current scenario in Argentina, it is worth mentioning that, due to Covid-19 and mandatory isolation, the legislative power has enacted the new Home Office legal framework which will come into force after 90 days of termination of the mandatory isolation period (Law No 27555).

Below, the most relevant aspects of this regulation:

• Employees working under home office modality have the same rights and duties as those working at the employers’ establishment (including union rights), and their salaries must not be less than the one that they would receive if they render services at the employer’s offices.
• Employees under the home office regime are entitled to the right to disconnect during time-off and leave periods.
• Employees living with or taking care of children under 13 years old, disabled people or elderly adults with special needs, duly evidenced, have the right to perform their tasks during compatible hours with their care tasks and/or to interrupt their working day.
• Any act, conduct, decision, retaliation or obstruction made by the employer that violates this right will be considered discriminatory.
• Employees’ consent is required when shifting from the company´s workplace to a home office modality in writing, except for force majeure cases.
• As a highly controversial point, we pointed out the so-called ‘reversibility’, which implies  that employee consent regarding the home office modality may be withdrawn at any time, and the employer is obliged to assign employees tasks in the offices again. In the event of an unjustified refusal, employees may consider themselves constructively dismissed, and claim the corresponding severance compensations.
• Employers must provide employees with equipment, working tools and necessary support for performing assigned duties, as well as afford all the installation, maintenance and repairing costs.
• Control systems intended to protect employer assets and information must involve union participation, aimed to protect home office employees’ privacy and intimacy.
• In the case of international home office employees, the applicable law will be the one where the tasks are performed, or the one corresponding to the employer’s domicile, depending on which one is more favourable to the employee.

Conclusion

Overall, the Argentine government has taken a number of positive labour and employment measures (positive for unions, employees and employers) to protect vulnerable and essential workers and grant the latter exclusive access to public transportation.

However, the crisis that pre-existed the Covid-19 outbreak must also be acknowledged. This crisis has been reinforced by the measures taken to avoid the spread of the disease. In this scenario, having in force a prohibition on terminating employment without cause or force majeure, together with a prohibition on suspending employees due to lack of work or force majeure, is an additional stress for employers who are trying to survive in these complicated circumstances, since their possibilities to restructure are very limited. This limitation is taking some companies to unfortunate decisions to close their business operations, leaving a high number of people unemployed. This was one of the consequences that the government ultimately wanted to prevent.

The dilemma is therefore whether ultra-protectionism is a better remedy than obstruction, which must be balanced with other business needs if Argentina wants to begin to mitigate the current situation and recover from its double crisis. 

 

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