To overcome the contingency caused by covid-19 in companies, the Ministry of Labor, through circular Number 021 of March 17, suggested different alternatives to mitigate the impact on labor relations. The proposed measures already exist in our law. However, the statement specifies them and makes them more flexible. That is, it allows their rapid implementation without the need for the formalities that are required in normal times.
The correct choice of a measure in your company will depend on particular circumstances, such as the corporate purpose, the type of position in which the measure is applied, and the economic impact that this contingency causes.
Those decisions are taken by mutual agreement between the parties, that is, the company – workers, and where a financial analysis and economic viability are taken into account will be successful.
The different measures that can be applied are:
Teleworking: is working from home using information and communication technology. It is possible mainly in administrative positions. It can be implemented without having to comply with all the formalities required by law. However, it is important to notify the ARL about the number of workers and positions under this modality.
Work at home: it is also working from home, but information and communication technologies are not necessarily used, unlike the previous modality. Not all telework requirements are required, and it is an occasional, temporary and exceptional modality.
Vacations: Those that are pending can be granted, and as a novelty, the Ministry of Labor proposes to give them in advance and even collectively. One of the formalities required by law in this figure is the need to notify the worker at least fifteen days in advance, currently and due to the contingency that period is one day. Vacations must be paid to the worker with the salary earned at the time of enjoyment. If they are granted in advance, he will not demand that a new vacation period be assigned to him after completing the working year.
Licenses: there are two possibilities in this option: – Paid, the worker is paid the salary for the entire time it lasts without rendering the service. – NOT remunerated. There is no salary payment. In both, there must be an agreement between the parties. The employer can’t decide to implement it unilaterally, much less exerting some pressure. It is recommended to leave as evidence a document that is proof of that will between the parties.
Review of the employment contract: this alternative allows that by agreement between the parties, the employment contract is modified in conditions such as salary, work hours, and any other circumstance, as long as the minimum legal requirements are respected. From the above, it is suggested that a document must remain as evidence of the parties’ will.
Suspension of the employment contract due to force majeure: it is a possibility that the law brings. However, it is important to clarify that it does not have effects by itself; the employer must justify that said contingency makes it impossible for him to carry out his corporate purpose, that is, it prevents him from carrying out his productive activity, and that therefore he has no other legal alternative. The employer must review whether the other alternatives proposed are viable in his business.
Depending on the conditions of each company, the alternatives can be applied alternately and successively throughout the duration of the contingency.
All the stated measures do not exempt the employer from complying with his obligation to pay contributions to the social security system. In some of them, the corresponding novelty is made, but the payment subsists.
In the measures adopted where there is no worker displacement, the transport subsidy is not paid.
Finally, it is important to highlight that the measures applied to require leaving evidence or proof, especially those where the agreement between the parties is essential for its validity; this avoids the future misunderstandings that lead us to legal proceedings. Therefore, it is essential to seek your lawyer for advice and prepare the relevant documents.
