It took too long for the world to react and take measures against the epidemic first, and against the pandemic now. As a matter of fact, nothing can be done but prevent and avoid contagion through collective and individual actions. The 14-day quarantine must be observed strictly, and the familiar and social environment should be monitored.
Published in El Cronista on March 17, 2020
From a labor and employment law perspective, a plague is a case of force majeure, an unpredictable or inevitable event.
Consequently, the Employment Contract Act contains a number of provisions to deal with such an event.
First, there is work suspension in case of force majeure (Section 221 of the Employment Contract Act), establishing suspension for a maximum term of 75 days first for with employees with less seniority, those who have joined the Company in the last six months and those with fewer dependents, and in addition there is work suspension for disciplinary and economic reasons that may be put forward as well, but by no means can the term exceed 90 days (Section 222 of the Employment Contract Act).
There is also paid suspension (Section 223 bis of the Employment Contract Act), probably the most widely used mechanism at companies because employees may be suspended for as long as necessary provided the union agrees and the company pays a non-salary amount equal to a percentage of employees’ net pay, which allows to preserve employment without the labor, tax, union and social security effects, except for social health care. The cost of this kind of suspension may be estimated at a third of employees’ pay, and therefore is sustainable over time for a relatively long and reasonable period of time.
Now employers may want to shy away from their responsibility by suspending their employees as a result of the pandemic without paying their salaries. This decision goes against the 14-day leave of absence due to quarantine and other types of suspension determined by the Executive, like the suspension of classes at all educational levels or the court recess to avoid the spread of the virus.
There are other ways to organize work such as teleworking, and online classes and virtual communication via streaming or videocalling or videoconferencing. In these cases paid work continues through this wide variety of options.
Companies are reacting well to face the Coronavirus pandemic, and this creates confidence in prevention but also raises concerns for the lack of resources and the light-minded mood of many individuals, organizations and authorities when it is high time for preventive action.
A cruiser ship full of Chinese people that docked in Ushuaia without control; a sick executive employee who kept on going to work knowing full well he had symptoms; other cases of late diagnosis; naiveté when filling in the affidavit for travellers at Ezeiza airport are some of the issues that raise serious concerns leading up to indignation.
For the time being, the number of available ICU beds and ventilators are not enough to handle a pandemic if Argentina reaches the level of other affected countries. In some provinces there are only a handful of clinics with adequate mechanical ventilation equipment and a small number of beds.
As to the actions that Companies can and must take, first of all there is the 2-week leave for employees coming from affected areas; there are also the measures that the Executive is taking to protect high-risk cases; and paid leave of absence for healthy employees to protect their health. Then, there are the mechanisms provided by the Employment Contract Act.
Employees may be allowed to telework and eventually be granted sick leave if they experience symptoms. During sick leave, medical coverage should be provided by social health care insurance handled by unions and prepaid medical plans for executive personnel to care for the infection, treatment, recovery and rehab for sick patients.
This is an emergency typical of war, similar to the Falklands War, similar to the financial meltdown in 2001 or the Influenza A outbreak, but in a more complex scenario that requires new resources, new media and the special intervention of the National Government as a leader to handle this crisis.
By Julian A. de Diego
Director of the postgraduate course on Human Resources at the School of Business at UCA.