Extension of the State of Emergency and other provisions.-
The National State of Emergency was extended until October 31, 2022. Also, the scope of the mandatory use of masks was reduced to: health establishments, vehicles for land transportation of people and closed spaces without ventilation, as well as to any person with respiratory symptoms.
New teleworking law.-
The main novelties of this new law on teleworking (Law Nº 31572) are the following:
| Obligation | Detail |
| Implementation | Requires written agreement between the employer and the employee. |
| Minimum content of the agreement | – Specify whether it is total or partial, and the time of attendance (if applicable).
– Specify whether it is temporary or permanent. – The minimum notice period for the employee to come to the office. – Working day and digital disconnection. – Worker’s address (either referential or because it is agreed that he/she shall render services there). – Communication and control mechanisms. – Platforms and technologies to be used, as well as equipment and internet (if applicable). – Compensation mechanisms in case the employee uses its own equipment, as well as internet and electricity. – Affidavit of prohibition of using third parties for teleworking. |
| Declaration of teleworkers | The employer must clarify in the electronic form if the worker has the condition of teleworker, total or partial. |
| Provision of equipment and compensation of expenses | Mandatory, unless otherwise agreed.
New rules: – The employer must provide the equipment and internet access service. – When the employee provides his own equipment and internet access service, these shall be compensated by the employer, unless otherwise agreed. – The employer shall compensate the consumption of electric energy, unless otherwise agreed. – The compensation of the expense for the electrical energy and the service of access of Internet this conditioned to the lending of labors is realized in the domicile of the teleworker. |
| Workday | – The rules are the same as for face-to-face work (maximum working day, compensation for overtime, work on rest days or holidays, exclusions from the maximum working day).
– Free distribution of the working day may be agreed upon at the times that best suit the employee’s needs. – Overtime must be at the request and with the consent of the employer. – The implementation of the mechanism for recording compliance with the working day is at the employer’s expense. – The worker has the right to digital disconnection (the worker is not obliged to answer communications, except in cases of force majeure or exceptional circumstances). This period is at least 12 hours in a period of 24 hours for those excluded from the workday, or those who have distributed the time of their workday. |
| Occupational Safety and Health (OSH) / Other trainings | New rules:
– The Occupational Safety and Health Law and its Regulations apply, as applicable. – The employer identifies the dangers, evaluates the risks and implements the corrective measures to which the teleworker is exposed. – Optionally and of common agreement, is implemented the mechanism of self-evaluation for the identification of dangers and evaluation that approves the Ministry of Labor and Promotion of the Employment. It is completed by the worker and is a sworn statement. Completion of the form does not exempt the employer from liability. – The employer communicates and trains the worker on the measures, conditions and recommendations of safety and health in the telework that this obliged to fulfill in the place in which it develops his labors. – The employer must train the worker in the use of computer applications and information security. |
| Deadlines | The Regulation must be approved within 90 calendar days from the entry into force of this rule.
The companies must adapt to the new Telework Law within 60 calendar days from the day following the publication of the Regulation. |
Facilities for Regional and Municipal Elections.-
These facilities are as follows:
(Supreme Decree Nº 016-2022-TR)
Jurisprudential doctrine on nullity of dismissal due to pregnancy is issued.-
The Supreme Court has established that the following rules are applicable in the proceedings for nullity of dismissal covered by literal e) of Article 29 of the Unified Text of the Law of Labor Productivity and Competitiveness:
On the other hand, in its decision in File Nº 02748-2021-PA/TC Madre de Dios, the Constitutional Court considered that Convention Nº 183 of the International Labor Organization establishes an objective protection against the dismissal of pregnant workers, in such a way that they are not required to inform the employer of their pregnancy and the latter must prove the reason for the termination of the employment relationship.
The payment of accrued remunerations excludes the indemnity for damages.-
The Supreme Court -after interpreting the agreement of the V Plenary Supreme Jurisdictional Supreme Court on Labor and Social Security matters- established that in cases of null dismissal, the worker who is reinstated in the workplace and receives the remunerations he/she did not receive during his/her dismissal or an equivalent amount of money, is not entitled to receive economic compensation in the form of moral damages because the damages generated by the dismissal would have been previously repaired (Labor Cassation No. 34040-2019 Lima).
The correction of the violations, after the issuance of the infraction report, obliges the authority to decide on the reduction of the fine.-
In the analyzed case, the employer presented the documents proving the reimbursement of the social benefits of its workers, having remedied the non-compliances prior to the issuance of the Final Investigation Report.
However, the first and second instance resolutions were limited to ratifying the commission of the violations without assessing the documents submitted. Neither did they rule on the reduction of the fine and the percentage applicable for the correction.
In this regard, the Labor Inspection Court (“TFL”) concluded that this contradicts the scope of the principle of legality and due process, in its manifestation of the due motivation of the resolutions, by issuing an incongruent pronouncement (…) and requires a new analysis of the documents and allegations presented by the plaintiff at a stage prior to the imposition of the fine (Resolution Nº 629-2022-SUNAFIL).
Thus, the TFL declared the nullity of the first instance resolution, and all subsequent acts, for contravening the rules that regulate due process.
SUNAFIL’s Social Security Auditing Protocol is approved.-
The referred protocol details the obligations that employers must comply with, as well as the information that inspectors may request within the framework of an inspection on health and pension social security issues, and with respect to the Mining, Metallurgical and Iron and Steel Pension Supplementary Fund.
Modify the provisions for the surveillance, prevention and control of the health of workers at risk of exposure to COVID-19.-
The main amendments are:
(Ministerial Resolution N° 675-2022/MINSA that modified Administrative Directive N° 321-MINSA/DGIESP-2021).
Peruvian Technical Standard (NTP) for personal protective equipment approved.-
The National Quality Institute (INACAL) approved NTP-ISO 16321-2:2022 for eye and face protection for occupational use, establishing additional requirements for protectors used during welding and related techniques. This edition replaces the 1977 NTP.
As a reminder, as a result of the modification of Article 60 of Law Nº 29783, Occupational Safety and Health Law (incorporated by Law No. 31246), personal protective equipment provided to workers must comply with Peruvian technical standards.
