LABOR NEWSLETTER
REM CURRENT NEWS
The Law for the Prevention of Cancer in Women and the Strengthening of Specialized Oncological Care was regulated.- This new regulation regulates the procedure for requesting paid leave that employers must grant at the request of their female employees for breast and/or cervical cancer screening (Supreme Decree No. 001-2024-SA).
The procedure is as follows:
- Submit to the employer the request for leave together with the scheduling of your appointment for screening examinations for these types of cancer, 3 working days in advance.
- The mere submission of the request does not entitle the employee to the leave of absence, since the employee must prove the care, presenting the respective proof within 3 working days following the appointment.
- The presentation of documents can be done physically or virtually.
- Paid leave is paid by the employer, without being able to require financing from EsSalud.
In order to ensure continuity of care, employers will provide the facilities to workers in accordance with their internal provisions on leave and/or leave provided for in the Internal Labor Regulations.
The occupational physician may require or request the documents indicating the diagnosis of breast and/or cervical cancer, if deemed necessary, in order to make the respective follow-up for the continuity of care of the workers.
Bureaucratic barrier declared illegal EsSalud requirements that generate the loss of the right to reimbursement of subsidies paid by employers.- INDECOPI has declared illegal bureaucratic barrier the provisions of Article 27.1 of Supreme Decree No. 013-2019-TR, according to which employers who fail to pay contributions of their workers in a timely and full manner are not entitled to reimbursement of subsidies paid to their workers for Temporary Incapacity for Work or Maternity (Resolution No. 0750-2023/SEL-INDECOPI). This decision has general effects.
INDECOPI based its decision on the following arguments:
- The applicable regulations state that the right to the subsidy is conditioned to the employer having declared and paid the contributions, without specifying that the payment must be timely and in full in order to access the benefits.
- Late or incomplete payment is different from total non-payment, so numeral 27.1 of Supreme Decree No. 013-2019-TR should not give the same treatment to two different assumptions.
- This rule prevents affiliates in a situation of maternity and temporary disability from accessing subsidies, even when employers have paid their contributions.
INSPECTIONS
Companies may not require their applicants to provide information on their health status or conduct medical examinations before signing the contract.- The Labor Inspection Court (TFL) confirmed a fine against an employer for acts of discrimination against an applicant, whom they decided not to hire after having found out that he was a carrier of HIV, without having declared it in his application form (Resolution No. 1216-2023-SUNAFIL/TFL-First Chamber). The TFL based its decision on the following arguments:
- Requesting an applicant to inform about the diseases he/she suffers from violates his/her privacy. Moreover, if the applicant is required to declare that he/she is a carrier of HIV, this could expose him/her to discrimination in access to employment.
- Requiring HIV tests to applicants to corroborate the declaration of diseases in the employment records is prohibited by Law No. 26626 and Ministerial Resolution No. 376-2008-TR.
- Occupational medical examinations are performed before the start of work, but after having signed the employment contract; that is, there must be an employment relationship for the pre-occupational medical examinations to be performed, even though they are performed before the actual start of work. In this case, there was no employment relationship with the applicant, so the medical examinations -including the HIV test- were prohibited.
OCCUPATIONAL HEALTH AND SAFETY
New measures for surveillance, prevention and control of COVID-19 at work – Administrative Directive that establishes the provisions for surveillance, prevention and control of the health of workers at risk of exposure to COVID-19 was approved (Ministerial Resolution No. 022-2024/MINSA). For more information, see the following link: https://www.estudiorodrigo.com/alerta-laboral-enero-2024/
REMINDER OF THE MONTH
Update of COVID-19 Plan.- Due to the publication of the Administrative Directive indicated in the Occupational Safety and Health section, as of January 16, 2024, employers must update their Plans for the surveillance, prevention and control of COVID-19.
- SUNAFIL sends inductive letters requesting information on compliance with the disability quota.- In these letters, SUNAFIL mainly requests information related to the electronic payroll for the period 2023 (Reports R05, TR3, TR5), disability certificates of the workers who worked during 2023 and a list of workers indicating, among other aspects, whether they have a disability or not.
- Reduction of contributions to EsSalud for the agrarian and irrigation, agro-export and agro-industrial sectors – From January 2024 to December 2028, workers included in the Law of the agrarian regime and incentives for the agrarian and irrigation, agro-export and agro-industrial sectors will pay monthly contributions to EsSalud. From January 2024 to December 2028, the monthly contribution to EsSalud of workers included in the Law of the agrarian regime and incentives for the agrarian and irrigation, agro-export and agro-industrial sectors (Law No. 31110), payable by the agrarian companies, will be 6% of the remuneration actually paid during the month (Law No. 31969).
- Benefits for hiring young workers.-Employers who as from January 1, 2024 hire young workers between 18 and 29 years of age may benefit from incentives, in accordance with the provisions of Law No. 31828.
