Extension of the State of Emergency and restrictions. – The National State of Emergency was extended until August 31, 2021, and the restrictions applicable to each region were defined, depending on the level of alert.
The Regulations of the Law for the Prevention and Punishment of Sexual Harassment were amended.- The main amendments applicable to the private sector are as follows:
(i) The possibility that the complaint may be filed in person or electronically is specified.
(ii) A document called “Act of Rights of the Complainant” is created, which must be read and signed by the victim at the time of the complaint.
(iii) It is provided that the offer of medical and psychological care to the victim, as well as the waiver or acceptance of these services, must be recorded in the previous Act.
(iv) Regarding the operation of the Sexual Harassment Intervention Committee, it is stipulated that, in all matters not provided for in said regulation, the regulations of the Occupational Health and Safety Committees shall be applied in a supplementary manner.
(v) It is specified that the principle of equality and non-discrimination based on gender includes gender identity and sexual orientation.
The Regulation of the Law that establishes the implementation of breastfeeding centers was adopted. – The novelties of this regulation are the following:
The Regulations of the General Labor Inspection Law were amended.- Among other amendments, the inspection powers of the assistant inspectors have been specified; and, the compliance management module has been added as a type of prior action, consisting of the verification of facts or documents through the preferential use of information and communication technologies (virtual), to monitor compliance with social-labor regulations and occupational safety and health regulations.
Supreme Court restricts the assumptions of compensation for non-pecuniary damages before the lawsuits challenging dismissal.- The Supreme Court specified that the compensation against arbitrary dismissal set by law is the only compensation for pecuniary and non-pecuniary damages arising from the same (Labor Cassation Nº 340-2018-Del Santa). In this sense, it pointed out that the economic reparation for the psychological affliction caused by the dismissal and formulated as moral damage, damage to the person or to the life project, only proceeds when the damage is an extraordinary fact, accredited and generated by a malicious conduct of the worker that affects the dignity, honor or reputation of the worker.
Dismissal is valid if the worker provides false information to obtain a medical leave.- The Supreme Court has established that the provision of a medical leave whose origin is false constitutes a just cause for dismissal in application of paragraph d) of Article 25 of Supreme Decree Nº 003-97-TR, which punishes the provision of false information to the workers in order to cause them harm and obtain an advantage. This, considering that in this case the worker showed that, during the time off, the worker attended a social event despite having declared his temporary incapacity to work due to an illness.
INSPECTIONS
The Labor Inspection Court (TFL) validates the establishment of requirements to grant union licenses for “acts of compulsory attendance”.- The TFL considers that this does not affect trade union freedom, since it is a manifestation of the employer’s power with respect to “acts of compulsory attendance” related to union activity. Therefore, it is established that they may be questioned or observed when they do not show the request for leave with the alleged union activity requested (Resolution Nº 063-2021-SUNAFIL/TFL).
The employer may deduct, at the date of termination, the leave of absence that was not compensated by the employee.- The TFL ruled that compensable leave granted during the State of Emergency: (i) originates from a legal mandate and not from the will of the employer and the employee and, (ii) constitutes an advance of remunerations. Thus, the employer has the power to deduct the amount owed from the remuneration and social benefits pending payment on the date of termination of the employee (Resolution 089-2021-SUNAFIL/TFL).
OCCUPATIONAL SAFETY AND HEALTH
The IPERC must include the prevention measures even for specific risks in another workplace.- This was established by the TFL through a recent resolution in which it confirmed the fine against a company for failing to include in the IPERC matrix the risk of falling from ladders in another workplace.
The TFL considered that the documents of the Occupational Health and Safety Management System must include all risks related to the worker’s work, including falls that may occur when, on behalf of the employer, workers perform work in places other than the workplace (Resolution Nº 106-2021-SUNAFIL/TFL).
The National Occupational Safety and Health Policy is adopted by 2030.- This document is applicable to the private sector and set outs five priority objectives that shall be reviewed annually by MINTRA and MINSA:
a. Ensure the management and institutional capacity articulated between the State, companies and workers.
b. Build a culture of risk prevention in the work environment.
c. Increase workers’ insurance against occupational risks.
d. Improve health and safety conditions in the work environment.
f. Increase regulatory compliance on the subject in the public and private sector.
