5. Managing COVID-19-Related Employee Issues
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
Decree 367/2020 provided that the COVID-19 disease shall be presumed to be an occupational disease, in respect of dependent workers excluded by legal dispensation from compliance with the mandatory and preventive social isolation ordered by Decree No. 297/20, and its supplementary regulations, for the purpose of performing essential activities (“essential workers”), while the isolation measure provided for by such regulations is in force, or during any extended periods thereto. Based on the foregoing, Labour Risk Insurance Companies must provide medical assistance (for which purpose a special fund was created) to infected essential workers and will cover their salaries and medical expenses during medical leave. Finally, the Central Medical Commission will evaluate whether the disease was work related.
Regarding childcare, the Ministry of Labour provided, by means of Resolution 207/2020, that during the suspension of classes in schools, as stipulated in Resolution No. 108/2020, issued by the Ministry of Education, the leave of the parent or responsible adult in charge, whose presence in the home is indispensable for the care of the child or teenager, shall be considered justified. Employees covered by this dispensation shall: i) notify their employer that these circumstances are applicable to his/her situation; ii) justify the need for such leave; and iii) provide any relevant information which should be taken into consideration by the employer. Only one parent or responsible person per household may use this exemption.
Employees who fear infection and refuse to work.
As long as the employer provides a safe workplace, employees must return to work once the mandatory isolation period is terminated. In this regard, Section 75 of the Labour Contract Law not only compels employer to provide a safe workplace, but also allows employees to refuse to work onsite, without loss or reduction of remuneration, if an imminent danger exists and/or the employer does not adhere to, or fails to adequately provide for, the necessary safety measures.
Disclosure of employees who are infected.
Section 5 of Resolution 202/2020 of the Ministry of Labour provides that the employer must inform the Ministry of Health about confirmed and suspected cases of COVID-19, in accordance with the employer’s obligation to provide a safe workplace in order to protect the health of its employees. It is important to note, that, while employers have a responsibility to inform its workers about an employee who has been in contact with suspected or confirmed cases, including isolating the suspected employee, and in order to take the appropriate precautions and preventative measures, the employer must, at all times, handle such sensitive information with the utmost care, and keep such information strictly confidential, as such information falls under the purview of, and rights afforded by, the laws governing Data Protection and privacy.