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Labor Newsletter – May 2020

COVID-19

REM CURRENT NEWS

Labor measures related to COVID-19.- The main measures ordered by the Government are the following:

(i) Compulsory social isolation: The State of National Emergency (EEN) is extended until June 30, during which the compulsory social isolation and restriction of movement of people and vehicles continues.

(ii) Resumption of activities: In addition to the activities of Phase 1, other activities are authorized to resume, such as e-commerce services for the sale of clothing, footwear and household appliances, diagnostic support services, dentistry, ophthalmology, rehabilitation, human reproduction, veterinary, mobile application services for home delivery services, technical and independent professional services such as IT technicians, plumbing, gardening, electricity, equipment maintenance and repair, among others.

Prior to the restart of activities, the applicable protocols by sector must be complied with and the COVID-19 monitoring, control and prevention plan must be implemented as well as approved and registered in the Integrated System for COVID-19 (SICOVID-19) of the Ministry of Health.

Those companies that had been providing essential services since before the gradual and progressive resumption of economic activities must comply with the foregoing, without prejudice to their continuing activities.

(iii) Withdrawal of AFP funds: Members of the Private Pension System (SPP) are empowered to withdraw voluntarily and extraordinarily 25% of their pension funds accumulated in their Individual Capitalization Account, for a minimum amount of 1 ITU Tax Units (S/.4,300.00) and with a cap of 3 ITU Tax Units (S/.12,900.00).

(iv) New definition of risk group: Includes people over 65 years of age or who have comorbidities such as uncontrolled hypertension, diabetes mellitus, severe cardiovascular disease, moderate or severe asthma, chronic lung disease, chronic kidney failure under treatment with hemodialysis, obesity with a body mass index of 40 or more, other diseases or immunosuppressive treatments.

(v) Face-to-face work of workers in risk groups: In case these workers wish to go to work, they may sign an affidavit of voluntary responsibility assumption, with the format approved by the Ministry of Labor and Employment Promotion, following a procedure and specific deadlines, with the participation of a doctor responsible for health surveillance in the workplace, in accordance with the provisions of Ministerial Resolution No. 099-2020-TR.

(vi) Facilities for the care of family members diagnosed with COVID-19 or within the risk group: Workers who are the only caregivers of direct family members diagnosed with COVID-19 or within the risk group who are not hospitalized, are entitled to the following facilities: (i) paid leave license subject to subsequent compensation; (ii) reduction of working hours subject to subsequent compensation; (iii) reorganization of working hours, shift work or remote work; (iv) temporary permits during the working day subject to subsequent compensation; or (v) any other facility that is relevant. In the absence of an agreement, the worker decides within the options proposed by his employer, which must not involve a reduction in remuneration or social benefits.

(vii) Measures that facilitate communications and management of individual and collective work relationships: Provision is made for the use of (i) digitization, information and communication technologies for the replacement of physical documents and holographic signatures for issuance, referral and preservation of documents in labor matters; (ii) information and communication technologies, such as audio and video recording, e-mail, among others, for the performance of trade union activities; and (iii) electronic mail, or other suitable digital means of communication, for communications between trade union organizations and employers.

REM CASE LAW

Constitutional Court validates that the employer deducts taxes and social security contributions from amounts ordered in labor sentences.- Through Judgment No. 05445-2014-AA/TC Santa, the Constitutional Court ruled that on the amount ordered to be paid in a labor judgment as a matter of res judicata, discounts may be made for Income Tax and AFP, as such payments constitute legal obligations.

The procedural deadlines and judicial work shall remain suspended until June 30.- The Executive Council of the Judiciary has adopted the following measures:

(i) Judicial work and procedural deadlines shall remain suspended until June 30.

(ii) Institutional protocols shall be in force to prepare for the resumption of activities from June 17.

(iii) Hearings shall be scheduled and rescheduled from July 1.

(iv) Hearings shall begin to take place from July 17 remotely or, exceptionally, in person.

The Constitutional Court implements the submission of written documents by digital means.- From May 25, the writings of all pending cases or those that must be processed through the virtual window and institutional email (tramites@tc.gob. pe) shall be submitted.  Likewise, the procedural deadlines remain suspended until June 30.

INSPECTIONS 

New version of Directive 002-2017-SUNAFIL on “Labor Complaints Service.- The main features included in this new version are summarized below:

(i) The labor complaint may be presented in person or online.

(ii) Notification to the employer is made through electronic communications that include the use of the Electronic Box of the SUNAFIL Electronic Notification Computer System.

(iii) In an inspection order, it is possible to accumulate and deal with several complaints filed against the same employer, as long as they deal with the same matters or periods, and the requisite measure has not been issued.

(iv) In the event of complaints about breaches of a redressable nature, the Administrative Conciliation of labor disputes is mandatory prior to the initiation of the inspection proceedings. If the parties do not reach an agreement, the inspection order is issued.

(v) Complaints are processed through the Compliance Management Module (MGC) when: (i) the reported events do not relate to the violation of fundamental rights, or situations that may put life or safety and health at risk, (ii) no greater risk is generated by the processing through the MGC, and (iii) they are not part of the list of complex matters issued by SUNAFIL.

In these cases, the employer is notified, electronically, with an inductive letter granting him a period of 5 days to prove compliance with the reported obligations. In the event of failure to comply, inspection proceedings are ordered to commence.

(vi) Complaints about arbitrary dismissal, fatal workplace accident, strikes or work stoppages, closure of the workplace, notification of termination, suspension of work, collective termination of contracts, sexual harassment at work or other matter that requires urgent intervention, the beginning of the inspection proceedings takes place on the same day that the labor inspector receives the inspection order.

Extension of deadlines.- SUNAFIL has extended until June 10, 2020, the suspension of the calculation of the deadlines for inspection proceedings, administrative sanctioning procedures, procedures for access to public information, fractioning of fines and coercive execution.

SAFETY AND HEALTH AT WORK

Temporary closure or stoppage of activities in the event of an outbreak of COVID-19 in the workplace.- In the event of an outbreak in the workplace, the following procedure shall be followed: (i) The health authority defines the “outbreak” situation according to the regulations of the Ministry of Health. (ii) Said authority immediately informs SUNAFIL of this event. (iii) SUNAFIL carries out the corresponding inspection actions to eventually determine the stoppage of activities or temporary closure of the economic unit or part thereof. (iv) The relevant procedure for applying the measure is followed, and a record must be drawn up that shall be immediately notified to the company.

Workers must perform a digital discard triage of COVID-19 before going to their workplace.- Workers returning or coming to their workplace must perform a differentiated digital triage through the following link: https://www.gob.pe/8665-sintomas-del-coronavirus-conocer-si-puedo-haber-contraido-el-covid-19.  In case of having symptoms of suspected COVID-19 infection, the worker must immediately communicate the results to his employer through the use of some information technology. Do not go to work and contact your first level of care health facility. This obligation does not detract from the employer’s obligation to monitor the workers’ health and the corresponding clinical follow-up in the event of a suspected or confirmed case by COVID-19. ****