ARTICLES

Temporary measures to preserve employment and normalize labor relations

The National Government has issued a new law establishing temporary measures to gradually normalize the labor relations that have been affected by the Pandemic in our country.

Among the provisions are the following: 

  1. The gradual reinstatement of workers is ordered, according to the type of activities of the employer, namely: 

– Companies that remain closed due to sanitary provisions since March 2020 may extend their workers’ suspensions for no more than five months. Once the opening of their activities is authorized, they will reactivate their suspended workers month by month according to the company’s conditions. 

– Companies in the primary sector of the economy that are authorized to operate must reactivate their suspended workers month by month gradually and according to the company’s conditions. The suspension extensions may not exceed three months. 

– Companies in the secondary sector of the economy that are authorized to operate must reactivate their suspended workers month by month gradually and according to the company’s conditions. The suspension extensions may not exceed six months.

– Companies in the tertiary sector of the economy, including companies with ten or fewer workers and the tourism sector, who are authorized to operate must gradually reactivate their suspended workers month by month and according to the company’s conditions. The suspension extensions may not exceed eight months.

The limits for the suspension extensions indicated for each economic sector may be extended by mutual agreement between the company and the workers or workers union if any. Said agreement should be registered, by digital means, within eight days of its signature.

 

  1. The hiring of new workers for job positions of suspended workers is prohibited. New workers may be hired for job positions other than those held by suspended workers. 
  2. In the first month of reactivation, the executive members of the unions, union representatives, people with disabilities, women with maternity leave, together with the workers who are reactivated in that first month, will be reactivated.
  3. For gradual reactivation, workers with more seniority or those who have been suspended for the longest time will be a priority, as far as possible. 
  4. Workers with chronic or degenerative diseases, and pregnant workers, who are not on maternity leave, are allowed to gradually return to their jobs, agree with their employer, observing the sanitary biosafety measures. 
  5. The particular procedure of presentation of mutual agreement is maintained, granting two business days before its signature for the worker to evaluate it.
  1. The Law also establishes that the worker whose contract has been terminated, within three months after his suspension reinstatement, must be paid his employment benefits in a term not exceeding eight months, with monthly payments not less than his average salary. When the company is small or in the tourism sector, the monthly installment agreed shall be no less than the average wage, but regarding the period that corresponds to the total payment of the benefits, there would be no limit of months for said monthly payment.
  2. For the suspension request to be approved, proof of communication of said request will be submitted together with the required documents to the existing unions in the company or, failing that, to represent the company’s workers.
  1. It is mandatory to register the reactivation of workers before the digital platform of the Ministry of Labor.
  2. The calculation of the labor benefits of workers who have been suspended or whose working hours have been modified will be made based on the average wages of the last six months or based on the previous monthly salary before the month of March 2020, whichever is more favorable. This particular provision will be in effect until June 30, 2022.
  3. The Ministry of Labor created The National Unemployment Registry to develop public policies to promote employment. The employer must communicate each worker’s terminations, and the worker may also register as unemployed with the Ministry of Labor once their employment relationship ends. 
  4. A crucial aspect is that it includes the protection of maternity leave for working women in this Law. In this sense, the Law establishes that the Social Security Fund, as an exception, will recognize the maternity leave of working women that, due to suspension measures, could not accumulate the contributions (nine quotas) before her seventh month of pregnancy. 

This Law will be in force until December 31, 2021.

 

Recommendations:

– Observe the formalities for suspension processes so that workers can make use of rights such as solidarity bonus and recognition of maternity leave by the Social Security Fund.

– At the time of the employment relationship termination, it is essential to follow this Law’s guidelines to avoid nullities and lawsuits.

– Making the corresponding records, namely suspended workers, reactivated workers, and workers whose contracts have been terminated.

– Likewise, make communication to unions or representatives of the workers about the workers requested to be suspended before the Ministry of Labor.

– Take note that the Law establishes that the parties can maintain agreements for the temporary modification of working hours beyond this Law’s validity, which is valid until December 31, 2021.

Author(s)

Lourdes Bishop

Senior Associate

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