Due to the recent arrival of the Coronavirus (COVID-19) to Argentina and the concerns that this triggers in the employment environment, we believe it is appropriate to make available an action guide with recommendations to face the impact of the outbreak on the employment. Below there a list of some of the employer’s main questions, answers and recommended actions.
1. Remote work
Q: One of the most typical questions: what about remote work? In light of the Coronavirus expansion, would it be possible to require employees to work remotely?
A: No. Currently, in Argentina there is no legal provision under which the employer may require employees to work from home. Nevertheless, work from home could be agreed between the parties at any time before or during the employment relationship.
Q: And what if the employee cannot carry tasks remotely? Should I pay salaries anyway?
A: Yes. The employer has the duty to provide actual work to the employee. If the employee cannot carry out work remotely, the employer would be entitled to request the employee to work, or to decide a paid leave.
Q: Can employees refuse to attend the office?
A: No. Employers must implement appropriate health and safety measures to protect employees’ life and integrity, and there are numerous specific statutory health and safety obligations in place. Consequently, the employee would not be entitled to refuse to attend the office.
Q: But what if the outbreak gets more severe?
A: Generally, the employees would still have the duty to attend. However, depending on the circumstances (e.g., an outbreak of COVID-19 at the premises), the refusal could be justified. As any other right, the employer’s right to request services should not be exercised in an abusive manner.
3. Health checks/medical testing
Q: Can I perform health checks to the employees?
A: Yes. As long as the checks/medical testing are not invasive or discriminatory, they can be carried out by employers. This is a faculty within the framework of the organizational power of the employer. Moreover, if the employee present symptoms, the employer could request to him/her to stay at home, prohibit the entry to the office, and send a physician for control.
4. Maintaining a safe working environment
Q: What are my obligations as an employer in this special situation?
A: The employer’s first priority is to protect the health and safety of its workforce. Since in Argentina there is no specific regulation related to the Coronavirus, general and reasonable good employer’s practices would be required. Among them:
- Keeping up to date with changing government, medical and travel advice.
- Issuing reminders of good hygiene practices.
- Providing adequate hand washing facilities, hand sanitizer and tissues.
- Cleaning communal areas.
- Issuing employees with information on the symptoms of the virus and what to do if they have concerns.
- Updating employees on changes to policies and practices (for example, homeworking or travel policies) as a result of the virus.
5. Business travel and events
Q: Employees’ normal tasks include traveling in and outside of Argentina. Can they refuse to travel?
A: No. According to the regulations in force, employees cannot refuse to travel for work. Every right must be exercised regularly. No abuse of right would be permitted under Argentine law. It would be a good employer practice to cancel trips to an unsafe area. However, there is no a legal regulation dealing with this situation.
6. Specific regulations
The National Ministry of Health file a non-mandatory advice on precautions to be taken at companies, public spaces and organizations with attention to public, to prevent respiratory infections, including those resulting from Coronavirus. These precautions include good hand hygiene, correct coughing and sneezing etiquette, disinfection of surfaces and ventilation of environments, limited use of face masks.
Currently, there are not specific regulations related to the Coronavirus. It may be that in the event of a massive spread of the virus in the country, the Ministry of Labor will issue a Resolution with impact on the employment relations. Something similar happened in 2009 in the context of “A” Flu (H1N1).