Since the health emergency was decreed in Uruguay on March 13, 2020, there have been many changes in everyday life, both for people and companies and particularly in the field of labor relations.
The telecommuting started playing a leading role which reached its peak with the approval of the Law 19,978 on the promotion and regulation of teleworking in August 2021. At the same time, doubts arose about the mandatory vaccination against covid-19 and if the companies may or may not require that their employees are vaccinatedconsidering that the government did not make that requirement.
Another of the doubts that different workers have faced and that companies have had to seek advice to answer is What happens if the employee is infected with covid-19 while on leave and must spend several days in quarantine. Are they lost days? They are recovering?
Juan Bonet and Martin Carrasco, partner and senior manager of Deloitte Legalthey pointed out in a report for The Observer that the incidence of covid-19 in the “normal development of labor relations as a whole” has forced companies “recurring” are making inquiries about it.
For its part, Alberto Baroffio, partner at Ferrere Lawyers manifested himself in the same line and said to The Observer that to deal with the covid-19 situation there are no “special labor regulations” in Uruguay but that the different situations that arise “must be resolved based on the general rules, and taking into account the reality of each sector of activity, and of each company”.
Next the answers of the experts to the main questions received.
Can the company require workers to get vaccinated? Can special measures be taken for unvaccinated workers?
According to Bonet and Carrasco, in accordance with current regulations in Uruguay, it is not possible to require workers to be vaccinated. “Only a law enacted for reasons of general interest that does not exist today could stipulate such an obligation (as it does exist in vaccines for diseases other than covid-19)”, explain the experts.
Regarding the possibility of taking special measures against unvaccinated workers, Baroffio indicated that the key should not be to separate vaccinated and unvaccinated employees but should focus onadopt all measures that contribute to achieving the best health conditions for all employees” with the objective of “create a healthy work environment” Y “fighting virus transmission”.
In this sense, he indicated the need to review prevention protocols – which must be tailor-made for the company – and have more information about employees so that it works more effectively.
“Yes, given the characteristics of the company and its employees (for example, taking care of those who are a population at risk), it is objectively concluded that it is necessary to make changes in the hours or place of work of some employees, it may be done. Both regarding those who are vaccinated and those who are not, since In this case, the criterion will not be, for example, changing offices to those who have not been vaccinated, but to those who are more likely to transmit the virus or who have a higher viral load. There will be no discrimination but application of objective criteria that will have scientific support”, he explained.
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What happens if an employee contracts covid-19 while on vacation?
The employee who is duly certified by the disease will suspend the enjoyment of their vacations, receiving sickness benefit according to him Article 6.2 of the International Labor Agreement No. 132.
Workers can make use of the tool online medical certification which implemented the Social Security Bank (BPS) in the month of January.
“It will correspond in those cases that the leave of that or another employee is reorganized for another time. Faced with the existence of many positive cases in the company (they have been infected during the leave or during the work period), it may agree with its employees on new dates for them to enjoy their vacationswhat if there was no agreementyou can determine unilaterally as long as it is based on an objective criterion such as the maintenance of the business activityBaroffio pointed out.
How does the payment of remuneration for absenteeism due to covid-19 proceed?
Employees who have been absent from work due to contracting covid-19 must receive an economic amount. According to Bonet and Carrasco, as a general rule in Uruguay, “the employer is exempt from paying the salary while the employee is certified for common illness. Except that, by collective agreement or award, another solution has been established”.
In this sense, the coverage will be provided by the BPS. The employee will receive an economic amount equivalent to 70% of all your income that is taxable matter, plus the part of the Christmas bonus. The subsidy will be paid from fourth day of certification for common illness unless the employee was internshipin which case the sickness benefit will be paid from the first day of hospitalization”, explained the Deloitte experts.
Regarding the calculation of the amount that the worker will receive, it will be carried out “taking as reference the average of the total remuneration received by the worker in the 180 days prior to the last day of the month prior to the certification due to illness”.
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The deadline for workers to return to the workplace after having contracted covid-19
According to Bonet and Carrasco, the employee “You must return to your workplace immediately after having obtained medical discharge from your health provider”.
However, the employer must ensure the health of all employees, therefore, in the situation where the employee returns to his job “with an appearance visibly affected by the possible existence of a new health problem”, the employer “should take measures so that the rest of the staff is not affected”.
Can an employee be fired for egregious misconduct for breach of covid-19 transmission prevention measures?
According to Baroffio, “non-compliance with the regulations associated with covid-19 – including the protocols – is punishable”. In that sense, he indicated that it is “essential that the protocol is updated, clear, designed for each reality, effective and enforceable”.
The sanction applied for non-complianceIt will depend on the seriousness of the fault. and it will not be the same in the different companies, because in certain sectors of activity, the same breach may be more serious than in others”, explained the partner of Ferrere Abogados.
As an example, he pointed out that at the judicial level There are already precedents where a court understood that the employee’s labor breaches configured notorious misconduct (2nd Labor Court of Appeals. Shift, sentence 166/2021).
