11 enero 2022

Increase in workplace absenteeism, affecting labor costs . Published on

The record high number of infections and the new Coronavirus variants -Delta, Omicron and Deltacron (a combination of these two)- are creating a new scenario for the return to the New Normal, with record-breaking level of absenteeism at companies where employees are required to work in person.

For the time being, based on the available data it is pretty difficult to keep social distancing (DISPO) as the main measure of prevention without taking other supplementary actions similar to lockdown (ASPO). Strictly speaking, there still are official and unofficial contradictions, with the mitigating factor that the death rate has decreased substantially. As a matter of fact, those who get infected and are fully vaccinated undoubtedly have greater protection against the virus and its side effects. But the truth is that whoever gets infected or has had close contact with a person with Covid-19 must isolate themselves, and quite unexpectedly, this has been affecting workplace productivity in different ways, with increasing rates of absenteeism that are very difficult to get under control.

Article by Julián A. de Diego published on on January 11, 2022

With this surge in cases, not only in summer vacation destinations, but also around the world, the vaccine mandate sparks off considerable debate. In countries such as Italy, France, Germany, England and Spain, disciplinary actions or restrictions are imposed on the unvaccinated; the Health Pass becomes a requirement, and general preventive measures, protocols, limited indoor capacity are revised for front desk customer service.

In countries like Israel or Chile, the authorities are considering the possibility of a fourth Covid-19 vaccine dose, which as of April 2022 will be covering the 2021 strain and therefore reducing the risk of infection significantly.

The possibility of causing herd immunity as a result of mass infection has already been ruled out, and in the face of this new surge in cases (4th and 5th waves) the authorities are trying to mitigate the Covid-19 effects rather than reaching population immunity, taking into account that fully vaccinated people can still get sick, even when statistics show a drop in the death rate and a remarkable decrease in side effects.

Although most pharmaceutical laboratories have been perfecting their research studies and vaccines with gradual improvements, the truth is that anti-vax movements attract a significant number of followers. In several states of the United States, in Italy, and in the Nordic countries, anyone working in customer service is required to get fully vaccinated. In Italy, workers over 50 cannot work under an employment relationship if they are not fully vaccinated (booster shot or 4th dose).

Argentina is still claiming that vaccination is not mandatory for citizens in general, but workers are required to get vaccinated based on their duty of collaboration, good faith, and the mutual obligation of prevention. Then under Act No. 19587 the parties are required to take all measures to protect workers’ life, health and psychological and physical integrity, even though this is not expressly or specifically established in the law.

The defense argument is simple: the National Constitution and international treaties are intended to protect life and health as higher legally protected interests under the law. To this end, lawmakers have taken any explicit or implicit measures to achieve the general goal of protecting public health.

Therefore, employees’ vaccination is mandatory, provided irrefutable written notice is given with the warning that the unvaccinated may not collect their wages if they cannot go to work. Under comparative law, workers may be terminated (CITIBANK case in the US) or suspended until they get fully vaccinated (case study in Italy, Germany and England). There are also other cases where indirect disciplinary actions are imposed: the unvaccinated cannot use public transport or go to public venues (the Netherlands, Denmark and Sweden). The unvaccinated are not allowed to leave the country, if you do not get tested and show a negative test result or the International Health Passport, in addition to on-site screening for Covid-19 symptoms.

The level of absenteeism is on the rise with an increase in confirmed Covid-19 cases and isolated employees claiming they have had close contact with a positive case. To avoid any fraudulent maneuver, employees are required to submit a close contact notification letter duly signed and enclosing a copy of the positive test result; otherwise the request for leave of absence will be rejected.

Ultimately, a large number of resources should be put in place to deal with the disproportionate increase in the rate of workplace absenteeism, and in order to limit the scope of the exposure, the Company could: a) Ask workers who are working in person to do overtime under Section 203 (LCT) that expressly deals with the extraordinary reasons that allow employers to demand overtime (with the following limitations: 3 or 4 extra hours per day, 48 per month and 200 per year) after previous authorization by the Department of Labor; b) Make temporary employment contracts (Section 99 LCT), whereby no severance pay is paid, sick employees are replaced (indicating their name in the contract) and this contract expires when the employees on leave return; c) Hire employees through a temporary employment agency duly authorized to do business (Section 29 LCT and Act No 24013) for limited periods of time; d) Suspended employees under Section 223 bis (LCT) can rejoin the Company to cover absences.

This new pandemic wave calls for the implementation of a whole set of preventive resources, which have partly fallen into disuse, encouraging mass vaccination with booster shots. Otherwise, the pandemic can cause irreversible and irreparable damage once again and seriously compromise the productive circle of goods and services.

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