Should I have a contingency plan in the company? What measures should the plan provide for?

Although the law only imposes the obligation of preparing and adopting a Contingency Plan on some companies and establishments (in particular, nurseries and kindergartens providing care services to children up to the age of 6), in practice this obligation seems to extend at least to all companies and establishments authorized to maintain their activities during the State of Emergency, insofar as they are under the obligation of adopting measures and rules of social distancing as well as health and hygiene, in accordance with the guidelines of the National Health Directorate.

On the other hand, even companies authorized operate during the State of Emergency should limit this exercise to activities considered essential, meaning that they should proportionally reduce their workforce present at their facilities.


To this extent, it will be advisable for those companies and establishments to prepare a Contingency Plan, which should at least contain:

  • a list of the work places which are temporarily closed and those that will operate on a minimum service basis
  • the composition of the respective minimum service teams
  • the scheme under which the members of that team should provide work (either in the work place or at home)
  • rules pertaining to the organization of the work and interaction between employees at the company’s premises and at home
  • hygiene and safety rules within the company’s premises specially designed to prevent the spread of COVID-19, including social distancing rules, in accordance with the orientations of the National Health Directorate (available at https://www.minsaude.gov.cv/index.php/documentosite/coronavirus-covid-19)
  • the procedures to be adopted should an employee present symptom of COVID-19

 

Do I have to take special care of pregnant employees, employees with reduced working capacity, breathing difficulties or minors?

Employees who are infected with COVID-19, as well as employees for whom a health authority has determined an active surveillance/prophylactic isolation situation (quarantine), are exempted from performing work.
There is a special duty of protection; circulation in the public road is forbidden for the purpose of business trips for the performance of on-site professional activities for workers:

  • employees aged 65 and over
  • immunosuppressed persons and persons with chronic diseases considered to be at risk, in accordance with the guidelines of the health authorities, in particular those with hypertension, diabetes, cardiovascular problems, persons with chronic respiratory disease and cancer patients

To the extent that there are employees more prone to contagion, specific measures should be considered to ensure an increased level of protection in specific cases. If feasible, such measures should be aligned with the health authorities’ recommendations.
No special measures of care and protection are provided for pregnant women falling outside the scope of the above situations.

 

May I require an employee to telework or do I need their consent?

If it is compatible with the employees’ duties, the company can order employees to telework without requiring their consent.

The obligation of telework for certain workers stems from the law itself and, thus, the need for the worker's consent is waived.

Workers compensation insurance policies should be reviewed to confirm whether the risk is covered in this new reality.

 

Do I have any special information duties towards my employees?

The Contingency Plan must be known to all employees, and its publication must ensure that that is the case. Additionally, mechanisms must be introduced that streamline the contact between the company and the employees, respecting their privacy whilst ensuring that issues are addressed centrally.

 

If the prophylactic isolation of employees is necessary or recommended, should I wait for a decision from the health authority or can I do it on a preventive basis? Can and/or should isolated employees continue to work from home?

If there are well-founded reasons to suspect contamination by COVID-19, isolating a worker should, as far as possible, result from a decision rendered by the relevant health authority. If it is not possible to timely obtain this decision, the isolation - and consequent abandonment of the company's facilities - must be determined by the employer, together with the occupational health and safety services, the worker being required to comply with this order.

As previously mentioned, workers infected with COVID-19, as well as workers upon which health authorities have determined a situation of active surveillance / prophylactic isolation (quarantine), are subject to mandatory quarantine and, to the extent that symptoms do not prevent the performance of professional activity, remote working mechanisms may be implemented, with the company being responsible for creating the necessary conditions for this purpose.

 

What is the impact of this isolation on the employment agreement? Do workers maintain the right to their remuneration?

If isolation is not an obstacle to the performance of professional activity, such isolation has no labour significance and the worker shall in principle maintain the right to remuneration.

 

To what social security contributions are employees entitled?

If isolation prevents the provision of work, a simplified regime of suspension of employment agreements has been established, under which companies may suspend the employment agreements of all (or some) workers, for a period of up to 90 days, as of April 1st, 2020, based on market difficulties, economic reasons and lack of supply of raw materials or other goods, as well as the impossibility of providing work by telework or by other means, communicating the grounds and extension of such suspension to the General Directorate of Labour, with at least 4 days’ notice. The employer must, at least 3 days in advance, notify the workers covered by the simplified regime of suspension of the employment agreement.

In cases of suspension of the employment agreement, workers are guaranteed the right to a monthly or proportional benefit, in the amount equivalent to 70% of their reference salary, calculated in the same terms as the sickness benefit. The responsibility for the payment of the benefit lies with the employers and the management entity of the Social Protection System, in the proportion of 35% each.  

 

If any employees have booked holidays, what can I do? Can I alter the holiday schedule? Can I close the company so that employees take their holidays?

Whenever the interest of the company's operation so justifies, the employer is allowed to grant collective vacation to the workers, closing the establishment totally or partially, as long as this closure does not conflict with vacation already scheduled and approved.

In this case, the alteration of previously scheduled vacations may only be carried out with the agreement of the workers. Exceptionally, the employer may change the scheduled holidays, when the company operating requirements so justify, but the employer must compensate the worker for the material and moral damages.

 

Can the employee in isolation continue to work remotely? If so, what should employer guarantee?

Assuming that isolation is not caused by an incapacity situation, the employee may continue to work remotely, it falling to the company to ensure that the necessary conditions for said purpose exist. Working remotely should be agreed on with the employees, refusals having to be managed on a case-by-case basis, as means to safeguard both the continuity of the production process and the legal guarantees enjoyed by the employee.

 

What are the consequences of the closure of schools on the rights of employees who stay at home to provide support to their families?

Mothers and fathers with parental responsibility over children attending kindergartens (i.e. children aged 0-3 years) are exempted from on-site work and may agree with the employer to do work at home in so far as their duties are compatible with doing so.

Regarding employees who are fathers their absence from the regular place of work or their abstention from working from home, when it has been determined to provide support to their children, will only be considered justified if the employee so requests and the employer authorizes such absence or abstention. Moreover, such absence shall be paid only if the employer does not expressly state otherwise in the respective authorization.

 

What are the solutions to mitigate or offset the financial costs and losses generated in my organization by COVID-19?

A simplified regime of suspension of employment agreements was established, under which companies may suspend the employment agreements of all (or some) workers, for a period of up to 90 days, as of April 1st, 2020, on the grounds of market difficulties, economic reasons and lack of supply of raw materials or other goods, informing the General Directorate of Labour, at least 4 days in advance, of the grounds and for the extent of the suspension.

During the suspension, the affected workers will be entitled to a monthly or proportional benefit, in the amount equivalent to 70% of their reference remuneration, calculated in the same terms as the sickness benefit. Only half of this benefit is paid by the employer, the other half (35% of the employee's reference salary) being paid by the management entity of the Social Protection System.

Additionally, during the period of suspension of the employment agreements the employers are exempt from the payment of social security contributions.

 

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This information is being updated on a regular basis.

All information contained herein  and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.