COVID-19 Updates on employment, litigation, public transport and tax measures issued by the Government and the Judicial Branch
The sudden global spread of Covid-19 brings challenges to our normal everyday life and also has a significant impact on our clients’ business; their employees, contracts with customers, suppliers, consumers, regulatory issues and relationships with overseas companies, among others.
March 19, 2020
COVID-19 Updates on employment, litigation, public transport and tax
measures issued by the Government and the Judicial Branch
In accordance with the powers assigned to it by means of Executive Decree No. 260/2020, the Argentine Ministry of Labor, Employment and Social Security issued Resolution 202/2020 on March 14, 2020, and Resolution 207/2020 on March 17, 2020. Likewise, the Superintendency of Occupational Risks (SRT, in its Spanish acronym) issued Resolution 21/2020.
Non-attendance at the workplace. This measure establishes the conditions for non-attendance at the workplace of employees, namely: confirmed and suspicious cases, their close contacts or those who have arrived in the country in the last 14 days from risk areas (as defined).
It also applies to those who do not maintain a relationship of labor dependency in the workplace, such as grant holders, interns, medical residencies or other modalities, whether occasional or permanent; and with respect to those involved or concerned with a situation of multiple employment, the measure will be extended in all workplaces.
Remote work and sanitary precautions. The precautions to be followed regarding those individuals subject to the aforementioned mandatory isolation are the following:
- employers and employees will establish, within the framework of contractual good faith, the conditions under which the tasks must be carried out;
- the so-called “mandatory isolation” will be extended for a period of 14 days and may be modified according to the epidemiological evolution that the patient experiences;
- in such case there will be no loss of salary during the period of isolation;
- employers and dependents must also abide by the preventive measures that must be implemented in this situation, collaborating in monitoring the evolution experienced by both those who are carriers of the virus and those who have been in close contact with the carriers of the virus;
- employers must observe the protocols established by the health authority and take extreme care to prevent situations of risk of contagion in the workplace;
- employees who are confirmed and suspicious cases, and those who have had close contact with the latter, or those who have arrived in the country in the last 14 days from risk areas, must report whether they are suffering from any of the symptoms of the virus within 48 hours of becoming aware of them;
- failure to comply with the aforementioned obligations will expose those in violation to criminal liability, which will give rise to the investigation of the criminal offenses set out in sections 205, 239 and related sections of the Criminal Code, which provides for imprisonment of six months to two years.
We think it is necessary to formulate some clarifications in relation to the terms of the aforementioned regulation and in view of the different reports and opinions -not all of them in agreement and of a precise source- that have been released in the last few hours:
a) the situation of isolation imposed by the above-mentioned regulation, which leads to non-attendance at the workplace, with respect to those who are suffering from fever or other symptoms characteristic of the Covid-19 virus that prevents them from performing tasks, must be placed in a similar category to the faultless medical absentees contemplated in section 208 of the Labor Contract Law in all its effects;
b) with regard to the other situations contemplated in section 7 of Decree 260/2020 (confirmed and suspicious cases, their close contacts or those who have arrived in the country in the last 14 days from risk areas), due to that fact alone the aforementioned isolation must be carried out (i.e. it is mandatory), but provided for by that legal mechanism in a preventive manner, which is why the non-attendance at the workplace may lead, on the part of the employer, to the assignment of tasks to be carried out remotely, at the domicile of the respective employees. We consider that in these cases, a leave or absence comparable to what is understood by such in the Labor Contract Law would not be triggered, since -if their health allows it- the employee must continue to provide -remotely- the same tasks under the conditions agreed with the employer;
c) during this period, the payment of salary is maintained, which we consider should remain unaffected, admitting the computation of additional sums of the company or emerging from the collective labor agreement, as provided for by the repealed Resolution MTySS 178/2020;
d) lastly, according to what the latter established, and given the characteristics assigned to non-attendance at the workplace, the isolation period should be computed as service time.
Nothing would prevent the employer, among the preventive measures taken in its establishment, from exempting from attendance those who are not at risk, or sick, or in any of the cases contemplated in section 7 of Decree 260/2020. In this way -through the isolation imposed preventively to preserve the health of all their employees- the employer would be empowered to assign them remote work, which as such is absolutely comparable to what is done in person. In such conditions, in order to comply with the measures that the sanitary authority implements by means of said public order regulation, in exercise of the powers of management and organization emerging from section 65 of the Labor Contract Law, the employer may implement emergency schedules, assign shifts, or remote work schemes and coordinate what is necessary for the execution of tasks and the continuity of the activity of the business, all of which would be in turn be encompassed in the duty of security it must exercise (section 75, Labor Contract Law).
Duty to attend the workplace. This regulation complements the previous legal provisions, setting conditions and the scope of the exemption from the duty to attend the workplace incumbent on the employee and which provides the following:
- It suspends the duty of attendance at the workplace for fourteen (14) days with full remuneration;
- It declares that this measure includes employees who are in the following situations:
a) those over 60 years of age, unless they are considered as “essential personnel for the proper functioning of the establishment”;
b) pregnant employees;
c) employees included in risk groups, due to pre-existing conditions from a series of chronic diseases described in the regulation, such as: pulmonary, cardiac, respiratory, immunodeficiency, diabetes, valve disease, among others;
d) it also contemplates a special exemption due to the suspension of classes in all educational establishments, (Resolution 108/2020 of the Argentine Ministry of Education) for employees whose children must remain at home for such reason.
Recommendation to the private sector to limit attendance. On the other hand, it recommends employers to maintain in the workplaces the personnel that is considered essential; and establishes that such "essential personnel" cannot include pregnant employees or those who may be considered part of the "risk groups" defined above.
Our opinion. In accordance with the terms of the above regulation, we believe that the exemption from the duty of attendance at the workplace that is thus implemented, does not give rise to the exemption from performing tasks outside the establishment (i.e. remotely) with respect to those who are healthy and in conditions of preventive isolation. The same applies with regard to those who, even presumably infected, or in a doubtful situation, do not present sufficient signs or symptoms that prevent them from performing tasks remotely.
Obligation to report employees in remote work. The Superintendency of Occupational Risks (SRT) established the burden of reporting the payroll list and data of employees that the employer considers covered by said resolution, with specification of:
- domicile where the task would be carried out, which is considered to be a work environment for the purposes and effects of Law 24,557 on Occupational Risks;
- frequency of the task to be carried out under these conditions, expressing the number of days and hours per week.
For questions related to these matters feel free to contact Esteban Carcavallo or Edgardo Isola.
Suspension of terms. Tax holiday.
As a result of the Coronavirus situation, on March 18, 2020, the Federal Tax Authorities (AFIP) published General Resolution 4682/2020 establishing the suspension of the terms (fiscal holiday) for the administrative proceedings before the AFIP related to the application, collection and audit of taxes under its scope as from March 18 through March 31, 2020, under the terms of AFIP General Resolution 1,983.
This entails, among others, that the time limit for answering tax requests, hearings and/or administrative proceedings before the AFIP (taxes, custom duties and social security contributions) notified during such dates will commence as from the first working day after the end of the tax holiday, this means April 1, 2020.
For questions on tax implications feel free to contact Alejandro Messineo or Ariadna Artopoulos.
The Argentine Supreme Court of Justice, in its Decision 4/2020, unanimously declared as non-working days the period from March 16 to March 31, 2020 for judicial proceedings before the courts comprising the Argentine Judicial Branch.
The Supreme Court further ruled that:
(i) the minimum services will be maintained, covered by magistrates or officials who are not included in the risk group.
(ii) for urgent actions, the authorization of non-working days and hours may be requested under the terms of section 153 of the Argentine Civil and Commercial Procedural Code.
(iii) all service to the public is suspended, except those in which the indispensable presence of the lawyers and/or the parties is required.
In the area of local justice, a judicial recess was declared until March 31, 2020 in nine provinces: Entre Ríos, Chaco, Salta, La Rioja, Tierra del Fuego, Buenos Aires, Río Negro, Córdoba and San Juan.
In the area of the Judicial Power of the City of Buenos Aires, the procedural deadlines are suspended until March 31, with minimum court officials to ensure justice services.
An extraordinary judicial recess was also announced at the Federal Tax Court from March 17 until March 31, 2020.
For questions related to these matters feel free to contact Martin Torres Girotti or Melisa Romero.
The Argentine Ministry of Transport has announced through a press conference a series of measures aimed at reducing the circulation in the city and metropolitan area generating less use of public transportation.
As of March 20 and until March 25, there will be no long distance trains and buses nor domestic flights. Additionally, trains and buses in the metropolitan area of Buenos Aires will be limited to carrying seated passengers only.
We can complement these preliminary considerations. In such case, please feel free to contact your regular contact partner or our team at [email protected].
March 12, 2020
DECREE 260/2020 - CORONAVIRUS EMERGENCY - COVID 19