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Labour

Law that adapts the Labor Code regarding electronic labor documents is published.

On July 27, 2021, Law No. 21.361 was published in the Official Gazette, which adapts the Labor Code regarding electronic labor documents, incorporating amendments to Articles 162 and 177 of the Labor Code. Specifically, this law provides as follows:

1. The employer must inform in the notice of termination of the contract whether it will grant and pay the termination of employment in person or electronically, expressly stating that it is voluntary for the employee to accept, sign and receive the payment electronically and that he/she may always opt for the in-person performance before a minister of faith. In such notice, the employer shall inform the employee that, at the time of signing the settlement, if he/she deems it necessary, he/she may make a reservation of rights.

2. The settlement shall be considered as ratified before the Labor Inspector if it is granted by the employer in the electronic site of the Department of Labour, which complies with the corresponding legal regulations and is electronically signed by the employee in the same site. This settlement must at least state the cause of termination invoked, the payments to which it has given rise and, if applicable, the sums that have been left pending and the reservation of rights that the employee may have formulated. The resignation and mutual agreement signed electronically by the employee in the electronic site of the Department of Labour will have the same consideration.

3. The subscription of the settlement in electronic form shall always be optional for the employee. In the event that the employee rejects the electronic settlement granted by the employer, the latter shall be obliged to make the respective settlement available to the employee in person, within the term established in the first paragraph of article 177 of the Labor Code or, if such term has expired while the electronic subscription of the employee is pending, within a maximum term of 3 working days as from the employee’s rejection.

4. The liberatory power of the settlement shall be restricted only to that in which the parties expressly agree and shall not extend to those aspects in which the consent is not formed.

5. This law shall enter into force on the date of publication of the resolution to be issued by the Department of Labour establishing the applicable procedure for the proper functioning of the ratification of the settlement, the resignation and the mutual agreement in the electronic portal of the Department of Labour, which shall also indicate the procedure by which the employer shall be required to pay and comply with the obligations arising therefrom in due time and in full, as well as the applicable regulation in the event of reservation of rights by the employee in the electronic settlement. Such resolution must be issued within 90 days from the publication of this law.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

The Department of Labour makes a statement on the meaning and scope of the law that adjusts the Minimum Monthly Income and its effects on labor matters.

On July 14, 2021, the Department of Labour, by means of ruling No. 1826/024, issued a statement in which it explains the meaning and scope of those provisions of Law No. 21.360 that readjust the amounts of the Minimum Monthly Income and its effects on labor matters. Specifically, this statement indicates the following:

1. Retroactive effect of the law regarding the values of the Minimum Monthly Income:

Employers must adjust the base salary of workers, having to consider for this purpose that such adjustment is effective as of 01.05.2021, by virtue of the retroactive effect of Law No. 21.360 regarding the values of the Minimum Monthly Income, hereinafter “IMM”.

2. Adjustment in the MMI values and effects on the payment of social security contributions:

Employers shall adjust the value of the IMM to the new amounts established by the aforementioned law as from 01.05.2021, corresponding that, in the month of July 2021, they shall pay for such concept, the following values:

a. In the case of workers over 18 and up to 65 years of age, remunerated exclusively with the IMM, they shall be paid the salary of $337,000 plus the difference corresponding to the months of May and June of the current year, amounting to the sum of $10,500 for each of these months. Thus, the salary of such employees shall reach in July 2021, the total amount of $358,000 gross.

b. On the other hand, in the case of workers under 18 years of age and those over 65 years of age, remunerated exclusively with the IMM, they shall be paid the salary of $251,394 plus the difference corresponding to the months of May and June of the current year, which amount to the sum of $7,833 for each of these months. Thus, the salary of such employees shall reach in July 2021, the total amount of $267,060 gross.

In addition with the above, the declaration and/or payment of social security contributions for the same period must be regularized with respect to the aforementioned workers.

3. Effects on the calculation of bonuses:

 The obligation to re-state the differences that occur in the salaries of the workers as a consequence of the IMM readjustments, is applicable in the event that the employer has opted to pay the legal gratuity of the workers in accordance with the system established in Article 50 of the Labor Code.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Law No. 21.360 was published, which readjusts the amounts of the Minimum Monthly Income.

On July 12, 2021, Law No. 21.360 was published, which readjusts the amount of the Minimum Monthly Income, as well as the family and maternity allowance, the family subsidy and grants extraordinary aids for families in the context of Covid-19. In particular, this law establishes the following:

1. As of May 1, 2021, the Minimum Monthly Income for workers over 18 years of age and up to 65 years of age is raised to $337,000.

2. As of May 1, 2021, the Minimum Monthly Income for workers under 18 years of age and over 65 years of age is increased to $251,394.

3. As of May 1, 2021, the Minimum Monthly Income for non-remunerative purposes is increased to $217,226.

4. Amends Law No. 21,218, which creates a subsidy to reach a guaranteed Minimum Monthly Income, as follows:

– Employers shall apply monthly to the Ministry of Social Development and Family, through the platform provided by the Undersecretariat of Social Services, for the granting of the benefit to all their workers who may be entitled to access it, verifying the respective requirements through the information declared by such employer.

– If the employer has difficulties that prevent him from applying in due time and form, he will have the obligation to inform the unions constituted in the company and its workers in general, about the contents and requirements for application to the minimum guaranteed income, through brochures issued by the authority or information published in visible places in the company, among other means. Compliance with this obligation must be reported electronically to the respective Labor Inspectorate.

– Likewise, to the extent possible in view of the employment conditions, the employer must allow access to the company’s computerized means for the respective application.

– Failure to comply with the obligation to apply and inform the union and the workers indicated in this article shall be sanctioned with fines:

1. From 5 to 10 monthly tax units in the case of micro and small enterprises;
2. From 20 to 40 monthly tax units in the case of medium-sized companies; and
3. From 30 to 60 monthly tax units in the case of large companies.

5. As of January 1, 2022, the Minimum Monthly Income for workers over 18 years of age and up to 65 years of age, may be increased to $345,000 or $350,000 based on the result of the Monthly Economic Activity Indicator (IMACEC).

1. In the event that the growth of the Monthly Economic Activity Indicator (IMACEC) for November 2021 has experienced a variation of less than three percentage points with respect to May 2021, the amount of the minimum income indicated in the heading of this article shall correspond to $345,000.

2. In the event that the growth of the IMACEC corresponding to November 2021 has experienced a variation greater than three or more percentage points with respect to the month of May 2021, the amount of the minimum income indicated in the heading of this article shall correspond to $350,000.

6. As of January 1, 2022, the amount of the Minimum Monthly Income applicable for workers under 18 years of age and over 65 years of age and for non-remuneration purposes will be increased in the same proportion in which the amount of the Minimum Monthly Income for workers over 18 years of age and up to 65 years of age is increased.

Should you require additional information on this matter, you may contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

General rule No. 456 Regulates the figure of the anonymous informant

On July 5, 2021, General Rule No. 456 (hereinafter, the “NCG”) was published, through which the Financial Market Commission (hereinafter “CMF”) issued instructions to regulate the form of collaboration of anonymous informants (the “Anonymous Informant”) in the investigations carried out by the CMF, the admissibility of applications to obtain the status of Anonymous Informant, and the parameters to determine the percentage of the fine that will correspond to the informant.

Application for Anonymous Informant status

Regarding the request to obtain the status of Anonymous Informant, it is established that whoever provides the Investigation Unit of the CMF with background information for the detection, verification or accreditation of infractions that are within the competence of the CMF, or of participation in such infractions, may request their intention to be treated as Anonymous Informant to avail themselves of the provisions of Title VII of D.L. N°3.538.

The request must be submitted through the electronic form available on the CMF’s website by whomever wishes to obtain the status of Anonymous Informant. The application must include the identification and contact information of the person submitting the application and the information to be provided, including the points mentioned in the NCG.

From the date of the request, the identity of the person making the complaint will be secret, as well as any background information that may identify him/her, regardless of whether or not he/she is granted the status of Anonymous Informant.

Conditions to obtain the Anonymous Informant status

Regarding the conditions to obtain the status of Anonymous Informant, according to the NCG, the information provided by the Anonymous Informant to the CMF’s Investigation Unit must be substantial, accurate, truthful, verifiable and unknown.

Along with this, it is instructed that the information provided by the Anonymous Informant must refer to infractions that, due to their relevance, seriousness or entity, will be those that, in accordance with the provisions of Articles 23 and 24 of Decree Law No. 3.538, may lead to an investigation process and subsequent sanction by the CMF.

Once compliance with the established requirements has been verified, the Prosecutor of the Investigation Unit of the Commission, within a maximum period of 3 months from the filing of the application (extendable for the same period), will issue a resolution granting the status of Anonymous Informant to the applicant. The application shall not be admissible nor shall the person who has incurred in the sanctioned conducts, or has been a victim of such conducts, have the status of Anonymous Informant.

Percentage of fine that the Anonymous Informant will be entitled to receive.

The CMF Council will define in the sanctioning resolution the percentage of the fine that the Anonymous Informant will be entitled to receive for his/her collaboration. The amount may not be less than 10% of the fine applied, nor greater than the lesser of 30% of the fine applied and 25,000 Unidades de Fomento.  For the determination of such percentage, the CMF Board will take into account factors such as the relevance of the information provided, the timeliness of its presentation, the cooperation provided by the Anonymous Informant and the seriousness of the sanctioned conduct.

Validity

The provisions contained in the NCG will become effective as of July 19, 2021.

Should you require further information on this matter, please contact Alvaro Caviedes (acaviedes@jdf.cl) and / or Christian Schiessler (cschiesslerq@jdf.cl).

The Department of Labour sets the meaning and scope of the law that creates the Vaccination Work Permit.

On June 24, 2021, the Department of Labour, through ruling No. 1706/022, establishes the meaning and scope of Law No. 21.347, which creates a work permit for all workers to be vaccinated. Specifically, this ruling states the following:

1. The right granted to every worker by virtue of the new article 66 ter of the Labor Code can only be exercised in cases of public immunization programs or campaigns.

2.  In all those cases in which the immunization involves the inoculation of more than one dose of the respective vaccine, the worker shall be entitled to half a day of work leave for each one of them.

3.  The work leave referred to in the new article 66 ter of the Labor Code shall be considered as effectively worked for all legal purposes. Consequently, the employer must pay the respective salary. In addition, it does not admit any economic compensation, neither during the labor relationship nor at its termination.

4. On the other hand, the leave must be extended with enough time for the transfers to and from the place where the vaccine doses are administered. This extension must also be considered as time worked for all legal purposes, and, consequently, entitles to payment of salary.

5. In order to request the vaccination leave, the employee is required to give notice to the employer at least two days prior to the day on which he/she will make use of the right. This notice must be in writing.

6. The worker must justify to the employer the fact of having proceeded to the immunization through the certificate or document granted by the respective health authority.

7. The right to work leave applies in the same way both to workers who have agreed to a regular working day and to those who have agreed to a part-time working day.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Decree extending the state of constitutional exception was published.

On June 30, 2021, Decree No. 153 of the Ministry of the Interior was published, extending the state of constitutional exception in the territory of Chile. To this effect, this Decree contemplates the following:

1. The Decree extends the state of constitutional exception of catastrophe, due to public calamity, declared in the Chilean territory, until September 30, 2021.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

The Department of Labour makes a statement on the provisions contained in the Safe Return to Work and Covid-19 Insurance Act.

On June 23, 2021, the Department of Labour ruled by means of Ruling No. 1702/021, on the interpretation of the provisions contained in Law No. 21.342 on Safe Return to Work and Covid-19 Insurance. Specifically, this statement indicates the following:

1. First, the ruling makes a statement regarding the validity of the law and that part in which it provides for the obligation that telework be implemented within the framework of the health emergency. In this regard, the statement states:

a. The validity of the law N°21.342 of Safe Return to Work and Covid-19 Insurance, will be extended in time while the sanitary alert remains in force and its possible extensions.
b. According to the Department of Labour, the employer is in the obligation to implement the modality of telework, when the following copulative requirements are met:

i. That the nature of the functions provided by the worker allows it;
ii. That the worker consents to it; and
iii. That the worker is in any of the hypotheses indicated in article 1° paragraph 2° of the law N°21.342.

c. The ruling states that it should be borne in mind that the law only grants the worker the power to require the employer to change the modality to teleworking, having to notify the employer in writing and accompanying the necessary documents that reliably prove that they are in one or more of the circumstances described in article 1° paragraph 2° of the law No. 21,342.
d. According to the Department of Labour, once the employer has been notified of the above mentioned requirement, it will have a term of 10 calendar days from such notification to implement it. If the employer does not comply with such obligation within the term indicated, the employee may file a claim before the respective Labor Inspector and as from the eleventh day, the employee will not be under the obligation to attend the workplace in person, and the employer must pay the corresponding salary in the same manner.
e. Without prejudice of the above, the employer will have the term of 10 days from the notification of the worker, to inform in writing to the same one, of its decision around the feasibility that the functions that fulfill can be carried out under modality of telework. In the case that the employer manifests the impossibility of such circumstance, the worker will be able to claim to the respective Labor Inspection. While there is no statement on such claim by the Labor Inspectorate, the worker must continue providing services in person. In the event that the Labor Inspectorate decides that such provision of services does admit the telework modality, it must be implemented immediately by the employer.
f. In turn, the ruling states that if the worker performs functions that cannot be performed under telework modality, the employer will assign him/her to other tasks, provided that the following copulative requirements are met:

i. That the functions that the worker performs cannot be performed under the modality of telework;
ii. That the worker is in one of the hypotheses indicated in the article 1° paragraph 2° of the law N°21.342;
iii. That it is counted with the consent of the worker;
iv. That it is feasible to assign the employee to other functions that do not require attention to the public or in which permanent contact with third parties who do not perform functions in said workplace is avoided; and
v. That it is not detrimental to the employee.

g. In relation to the fourth requirement mentioned above, the Department of Labour interprets that what the legislator prevents is contact of a “permanent” nature, so there is nothing to prevent the employee from being assigned to functions where he/she may occasionally attend to the public or have contact with third parties.

2. Secondly, the Department of Labour makes a statement regarding the election of workers’ delegates for the Joint Committees.

In this regard, the reference made by Article 3 of Law No. 21.342 to delegates corresponds to the workers’ representatives for the Joint Health and Safety Committees. For the election of such delegates, the law establishes that it shall be carried out through a face-to-face vote or by suitable electronic means that allow the unequivocal expression of the worker’s will, considering for these purposes both those whose labor relationship is suspended under the Employment Protection Law and those who are not covered by such regulations.

3. Thirdly, the ruling makes a statement regarding the Covid-19 Occupational Health and Safety protocol. In this regard, the statement states that:

a. Companies that do not have a Covid-19 Occupational Health and Safety Protocol cannot resume or continue their work in person. On the other hand, organizations in which on-site work is being carried out on the date of publication of Law No. 21.342, will have a maximum period of 10 working days from the aforementioned date to draw up the protocol in question and take the measures provided for therein.
b. If the company restarts or continues working without the referred protocol, it will be subject to the sanction that orders the closure of the factories, workshops, mines or any work site that means an imminent risk for the health of the workers or the community.
c. The expression “third party” included in the final paragraph of Article 8 of Law No. 21.342 is not understood as a synonym of “any person”. In this case, its scope includes only those who are in direct relation with the line of business in which the employer is engaged and to the extent that they are linked to the provision of services by the worker. Thus, the employer’s liability is ruled out for events that are totally unrelated to it and that are not related to those areas under its control.
d. Finally, an aggravating factor of liability is established when it is determined that the worker’s infection was due to the employer’s fault and the employer has not complied with the obligation of paragraph 1 of Article 2 of Law No. 21.

4. Fourthly, the ruling makes a statement regarding the contracting of the mandatory health insurance associated with Covid-19. In this regard, the statement states:

a. The insurance referred to in Law No. 21.342 must be contracted for all workers rendering services in the private sector and to the extent that their contracts are regulated by the Labor Code. Consequently, this insurance is compulsory for workers subject to ordinary employment contracts as well as for special contracts.
b. The Department of Labor indicates that in the case of subcontracted workers, it will be the contractor or subcontractor, as the case may be, who must contract the insurance referred to.
c. Additionally, according to the Department of Labor, in the event that the worker has more than one employer, the obligation to contract the insurance will be simply joint for all of them.
d. The ruling states that the employer’s obligation to take out the mandatory individual health insurance associated with Covid-19 must be complied with within the following deadlines:

i. Workers hired before the incorporation of the policy in the CMF’s deposit, the term is 30 calendar days after the respective policy is incorporated in the deposit (maximum term July 4, 2021), and
ii. Workers hired or who return to render on-site services after the incorporation of the policy in the CMF’s deposit, the term is 10 calendar days following the start of the worker’s work.

e. The ruling states that the employer who does not comply with the obligation to take out the aforementioned insurance can be made liable for the sums that would have been covered by the insurer. The foregoing is without prejudice to the provisions of Articles 505 and following of the Labor Code.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

The Department of Labour makes a statement on the application of the telework law to teachers and education assistants.

On June 14, 2021, the Department of Labour ruled by means of ruling No. 1654/020, on the application of Law No. 21.220, which amends the Labor Code regarding telecommuting, to teachers and education assistants working in educational establishments, due to the fact that, in view of the state of emergency, the provision of educational services has been carried out remotely. Specifically, this statement indicates the following:

1. According to the Department of Labour, nothing prevents teachers from agreeing to provide services under the modality of telework or remote work, at the beginning of the employment relationship or during its term.

2. According to the Department of Labour, in the absence of an agreement between the parties, Law No. 21.220 is not applicable to teachers and education assistants who are providing services remotely. This is due to the fact that the implementation of the remote educational service during the health crisis obeys regulatory and, therefore, mandatory provisions issued by the relevant authority.

3. In turn, the Department of Labour points out that since the provision of services by workers is an obligation to be made, and that, on the other hand, it is up to the employer to manage his company or take charge of it, it is the employer who, in any form of provision of services, whether remote or on-site, must provide the necessary elements or materials so that his employees can perform the work agreed in their employment contracts. On this point, the Department of Labour points out that it is not possible to determine in a generic way what tools or materials should be provided by the employer to workers who provide services remotely.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

The Department of Labour issued a statement on the employer’s obligation to train the worker on health and safety measures to perform teleworking work.

On June 14, 2021, the Department of Labour issued a statement by means of ruling No. 1653/019, in which it states the employer’s obligation to train the worker on the main safety and health measures that must be taken into account when performing teleworking tasks, and the possibility that companies may hire technical training organizations (OTEC) for such training. Specifically, this statement indicates the following:

1. According to the Department of Labour, Article 152 quater N of the Labor Code requires the employer to train the employee, prior to the beginning of the work under the telecommuting or teleworking modality, about the main safety and health measures that must be taken into account during the performance of their work, which may be carried out through the insurance administrator of Law No. 16.744 to which the employee is affiliated or directly. In the latter case, it is authorized to hire external entities and the training must comply with the provisions of the regulations issued in accordance with paragraph 1 of Article 152 quater M of the Labor Code.

2. For its part, the Department of Labour points out that the determination of whether this type of training can be framed within the objectives of Law No. 19,518 and, consequently, whether it qualifies for access to tax benefits by companies, is a private matter of the National Training and Employment Service, and the Department of Labour does not have the competence to issue a statement in this regard.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Law that modifies the law on protected parenting is published, granting exceptional benefits to workers who have made use of parental preventive medical leave.

On June 14, 2021, Law No. 21,351 was published, which amends the law that establishes benefits for fathers, mothers and caregivers of children, granting exceptional benefits to dependent, independent and public sector workers who have made use of one or more parental preventive medical leaves under the conditions it indicates. It establishes the following:

1. During the state of constitutional exception of catastrophe and during the time it is extended, workers who have made use of one or more parental preventive medical leaves, may suspend the effects of their employment contracts.

2. In the above case, such workers shall be entitled to receive up to the first 3 months of such suspension, a monthly benefit equivalent to 100% of the subsidy for work incapacity derived from the parental preventive medical leave, in those cases in which the workers have received for such monthly leave, a monthly net amount equal to or less than $1,000,000, and 70% or $1,000,000, whichever is greater, in those cases in which the workers have received for such monthly leave, a monthly net amount greater than $1,000,000.

3. The benefit established above will be financed by the Severance Solidarity Fund. In the event that such amount is insufficient to finance the totality of the benefit, the workers will be entitled to a fiscal supplement to complete a monthly benefit equivalent to 100% or 70% of the monthly subsidy for work incapacity derived from the parental preventive medical leave, as the case may be.

4. In the event that the effects of the contract remain suspended after the months indicated in the seventh paragraph, the workers will be entitled to receive benefits that will be calculated according to the averages of their salary accrued in the last 3 months in which they registered contributions, with the percentages and values that are applicable to them according to Article 7 of Law No. 21.

5. Additionally, self-employed workers who are in the same circumstance indicated in the seventh paragraph, exceptionally, shall be entitled to receive a tax bonus for up to 3 months, the amount of which shall be equivalent to 100% of the subsidy for incapacity for work derived from the parental preventive medical leave, in those cases in which the workers have received for such monthly leave, a monthly net amount equal to or less than $1. 000,000, and of 70% or $1,000,000, whichever is greater, in those cases in which the workers have received a monthly liquid amount higher than $1,000,000 for such monthly leave.

6. For the purposes of the above, it shall be sufficient that the workers request the benefit during the state of constitutional exception of catastrophe and during the time it is extended, in order to be understood that they have exercised this right within the legal term and may access the mentioned benefits for up to 3 months, if so requested.

7. Workers who make use of the suspension regulated by the seventh paragraph shall be entitled to an extension of the leave of absence referred to in article 201 of the Labor Code. The extension period shall be equivalent to the period of suspension actually used and shall be effective immediately upon termination of the period of leave extended by the parental preventive medical leave that has been used.

8. During the validity of the state of exception and for as long as it is extended, the workers who at the date of publication of this law had the effects of their work contracts suspended, and as long as the suspension remains in force, shall be entitled to the next 3 monthly benefits that may correspond to them, as of the mentioned date of publication, to be equivalent to 100% of the subsidy for work incapacity derived from the parental preventive medical leave in those cases in which the workers have received for said monthly leave, a monthly liquid sum equal to or less than Ps.1,000,000, and 70% of 70% of the monthly liquid sum equal to or less than Ps.1,000,000, and 70% of the monthly liquid sum equal to or less than Ps.1,000,000. 000,000, and of 70% or $1,000,000, whichever is greater, in those cases in which the workers have received for such monthly leave, a monthly net amount higher than $1,000,000.

9. The bonus for self-employed workers established in Article 4 of the Protected Parenting Law, as amended by this law, must be requested during the validity of said law, on a monthly basis and for up to 3 months, as of the publication of this law, so that it is understood that they have exercised this right within the legal term and may have access to the mentioned benefit.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Law amending the Labor Code is published, creating a work permit so that all workers can be vaccinated.

On June 3, 2021, Law No. 21,347 is published in the Official Gazette, which amends the Labor Code, creating a work permit so that all workers may be vaccinated, in the cases indicated. In particular, this law establishes the following:

The law establishes that in cases of public immunization programs or campaigns through vaccines or other means, for the control and prevention of transmittable diseases, every worker who is within the target population of such campaigns shall be entitled to half a day of work leave for vaccination.

According to the law, the rules of the second and following paragraphs of article 66 bis of the Labor Code will be applicable to this right, but the worker must give notice to the employer at least 2 days in advance.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Decree extending the validity of the benefits and allowances provided for in the Employment Protection Law is published.

On June 2, 2021, Decree No. 930 was published, which extends the validity of the benefits of the Employment Protection Law and those contemplated in the law that temporarily relaxes the access requirements and increases the amount of unemployment insurance benefits due to the pandemic. Finally, the Decree grants additional transfers from the solidarity severance fund. In particular, this Decree contemplates the following:

1. The Decree extends until September 6, 2021, the validity of the benefits and allowances established in Title I of the Employment Protection Law.

2. As provided in the Decree, up to an eighteenth transfer from the Solidarity Unemployment Fund is granted until September 6, 2021. Such transfers will be granted to beneficiaries who are entitled to the benefits associated with the existence and are in the event described in the first paragraph of Article 1 of the Employment Protection Law.

3. By virtue of this Decree, it is established that, as from the sixth drawing, the average percentage of salary of these drawings will be 45% of the salary.

4. The Decree extends until September 6, 2021, the validity of the benefits and allowances established in the law that temporarily relaxes the requirements for access to unemployment insurance due to the pandemic, with respect to the latter.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

The Ministry of Labor and Social Welfare approves regulations that determine the activities considered hazardous work and includes guidelines to protect the rights of adolescents of working and non-working age.

On May 22, 2021, the Regulation approved by the Ministry of Labor and Social Welfare is published in the Official Gazette, which determines the activities considered as hazardous work and includes guidelines aimed at avoiding this type of work, addressed to employers and educational establishments, in order to protect the rights of adolescents of working age. In particular, the Regulation provides for the following:

These Regulations shall apply with respect to adolescents of working age and adolescents not of working age who, in contravention of labor regulations, perform hazardous work. It shall also apply to children and adolescents not of working age who, with the authorization of the corresponding court and in compliance with labor regulations, enter into contracts to participate in theater, cinema, radio shows, etc., and the employer must adopt measures to protect their life, physical and mental health.

According to the Regulation, children and adolescents, with or without working age, are prohibited from performing hazardous work, the latter being understood as work that by its nature or the conditions in which it is carried out, is likely to damage or affect their health, development or safety.

Regarding the procedure for hiring children or adolescents with or without working age, the Regulation indicates that certain specific information must be included in the employment contract, in addition to the provisions of Article 10 of the Labor Code.

In addition, the Regulation states that the employment contract of the child or adolescent with or without working age, as well as its amendments and annexes, must be registered in the website of the Department of Labour. The above must be complied with within 5 days from the signing of the contract, attaching the required documentation.

The Regulation provides that any person may report to the competent authorities any violations related to child and adolescent labor, which will be sanctioned in accordance with Articles 18 bis, 18 ter, 18 quater and 18 quinquies of the Labor Code.

The Department of Labour and other supervisory entities will be responsible for the enforcement of the provisions of these regulations.

The regulation establishes that employers who hire adolescents of working age or, exceptionally, children and adolescents not of working age, must safeguard their rights and promote their protection.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Law establishing an occupational health safety protocol for the gradual and safe return to work within the framework of the health alert declared on the occasion of Covid-19 is published.

On June 1, 2021, Law No. 21,342 was published, which establishes an occupational health safety protocol for the gradual and safe return to work within the framework of the health alert decreed on the occasion of the Covid-19 disease in the country and other matters indicated. For this purpose, this law is divided into two titles, as follows:

Of the protocols of Occupational Health Safety by the Covid-19.

1. The law provides that while the health alert persists, the employer must implement the modality of telecommuting or teleworking. The above, without reduction of salaries to the extent that the nature of their functions allow it and the worker consents to it

2. Additionally, this law imposes to the employer the obligation to implement the modality of telecommuting or teleworking, in the event that a worker proves to suffer any condition that generates a high risk of infection, or the fact of having under his care any of the persons indicated in the law, within 10 days of notification of the worker’s condition.

3. The law provides that the worker may not be obliged to go to work while the previous obligation is not fulfilled by the employer.

4. On the other hand, the law states that in the event that the functions of the worker are not compatible with the modality of telecommuting or teleworking, the employer will assign them to work that does not require attention to the public or in which the worker avoids permanent contact with third parties.

5. The law provides that within 10 working days from the publication of this regulation, the agencies administering the occupational accident insurance must prepare a standard protocol for their affiliated companies, based on the instructions of the Superintendence of Social Security. At the same time, it is stated that the protocol must contain at least the measures indicated therein.

6. In addition, it is provided that the companies that at the time this law enters into force, are carrying out on-site work activities, must draw up the referred protocol and take the measures foreseen within 10 working days from the publication of this regulation.

7. At the same time, the law provides that companies that do not have a protocol may not resume or continue face-to-face work activities.

8. On the other hand, the law establishes that the companies will not be able to charge workers for the value of the inputs and equipment of the measures adopted.

Compulsory Individual Health Insurance associated with Covid-19

9. The law establishes a mandatory individual insurance in favor of workers who are performing their work in person, which shall provide for compensation in case of natural death due to Covid-19 infection.

10. Thus, according to the law, it will be the obligation of the employer to contract this insurance and provide proof of its contracting to the worker. This insurance may be contracted in any of the authorized insurance companies.

11. The law states that the insurance policy must be contracted by the employer within 30 calendar days from the date the policy is deposited with the Financial Market Commission. However, for workers hired or who return to render on-site services after the deposit, the insurance must be made within 10 calendar days following the start of the worker’s work.

12. According to the law, employers who have not contracted the insurance shall be liable for the payment of the amounts that would have been covered by the insurer, without prejudice to the corresponding penalties under the Labor Code.

13. The law states that the annual value of the policy may not exceed 0.42 UF for each worker.

14. In addition, the law establishes that the insurance will be valid for one year from the date it is contracted and the insurance coverage will be maintained in the event that the labor relationship is terminated, up to the term of the insurance contract.

15. According to the law, if at the end of the term of the policy the health alert is still in force, the employer must contract a new insurance policy or renew the current one.

16. The norms of the present law will be applied during the time the sanitary alert decreed on the occasion of the outbreak of the new Covid-19 is in force.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

The Department of Labour makes a statement on the scope in labor matters of the elections to be held on May 15 and 16, 2021, considering that it will be an exceptional election process.

On May 12, 2021, the Department of Labour issued a statement by means of ruling No. 1449/015, in which it explains the labor implications of the elections of Constituent Convention Members, Regional Governors, Mayors and Councilmen, to be held on May 15 and 16, 2021. Specifically, this statement indicates the following:

1. According to the Department of Labour, May 15 and 16 will be legal holidays throughout the country, thus constituting days of rest.

2. In turn, the Department of Labour states that the rest period corresponding to the elections to be held on May 15 and 16 must begin no later than 21:00 hrs. on Friday, May 14 and end at 06:00 hrs. on Monday, May 17, unless the respective workers are subject to rotating work shifts.

3. On the other hand, the ruling states that with respect to the workers listed in numbers 1 to 6 and 8 of article 38 paragraph 1 of the Labor Code, since they are exempted from the Sunday rest, they must work on May 15 and 16.

4. According to the Department of Labour, no commercial workers may work on May 15 and 16, except for those who work in the dispensing of fuel, those who work in emergency pharmacies and those who work in pharmacies on duty as established by the health authority.

5. According to the ruling, the modalities of home delivery or store pick-up service provided by retail workers may be made on May 15 and 16 only in the event that they are related to those workers who work in fuel retailing, those who work in emergency pharmacies and those who work in pharmacies on duty as set by the health authority.

6. According to the Department of Labour, workers who, due to the nature of their services, must work on the day of the elections, have the right to be absent from work for 2 hours, without their absence during said period meaning a reduction in their salaries. In this sense, the ruling states that the 2-hour period is the minimum time established by law to go to vote and, therefore, there is no inconvenience for the parties to agree on a longer period of time.

7. In addition, the Department of Labour states that the workers appointed as polling station officials; delegates of the electoral board; or members of the scrutinizing colleges, may be absent from work for the time necessary for the proper performance of such electoral functions, without the employer being entitled to make any discount in the salaries of the workers who must be absent for such reason.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

A special law is published declaring May 15 and 16, 2021 as non-waivable holidays for the elections.

On May 12, 2021, Law No. 21,341 was published in the Official Gazette, which declares May 15 and 16, 2021, as a mandatory and non-waivable holiday for commercial employees, on the occasion of the elections of constituents, mayors, governors and councilmen. Specifically, this law provides as follows

1. May 15 and 16, 2021, are declared mandatory and non-waivable holidays for all trade employees, with the exception of fuel dispensing employees, emergency pharmacies and pharmacies that must comply with shifts set by the health authority.

2. On the other hand, it states that those who violate the provisions of this article shall be sanctioned with fines for tax benefit for each worker affected by the infraction.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

A new law is published that modernizes the operation of the Department of Labour and modifies the Labor Code in several matters, establishing, among others, the obligation to register employment contracts.

On April 30, 2021, Law No. 21,327 was published, which modernizes the functioning of the Department of Labour, increasing its competences and powers. Along with the above, this new regulation incorporates technology to the processes of the Directorate through the digitalization of procedures and formalities. Finally, the Labor Code is modified, establishing new obligations for employers. In general terms, this law addresses the following matters:

1. The law establishes that all employers must register the new employment contracts in the electronic site of the Department of Labour, within 15 days of their execution. This obligation will become effective as of October 1, 2021.

2. The law also provides that the employer must register the employment contracts entered into prior to the effective date of this law, within a period of 1 year from its publication. This is provided that the contract is in force at the date of registration.

3. Additionally, as prescribed by law, every company must register the termination of the contract in the registry created for this purpose by the Department of Labour.

4. The law stipulates that employment contracts entered into after its entry into force must include the address and e-mail address of both parties.

5. The law provides and clarifies that the deadlines related to administrative fines, especially those related to the reconsideration thereof, are administrative working days.

6. Regarding communications, notifications, summons and fines issued by the Department of Labour, the law establishes that these must be sent by e-mail. Therefore, the company must register an e-mail address where the aforementioned procedures must be carried out. However, the possibility of notifying the company in person or by registered letter remains in force.

7. The law establishes that notifications shall be deemed to have been made on the third business day following the date of issuance of the aforesaid mail.

8. With respect to the new powers of investigation and supervision of the Department of Labour, the law provides that the Department of Labour may enter into agreements with public and private entities that manage data on employers, workers and trade union organizations, for the maintenance of data relating to labor and social security obligations.

9. A new range of fines for labor non-compliance is created, differentiating between micro-companies, which may be sanctioned with fines of 1 to 5 UTM, and small companies, which may be sanctioned with fines of 1 to 10 UTM.

10. The law establishes that the resolution issuing a fine must include the categorization of the fine, classifying them as minor, serious and very serious. For this purpose, the nature of the infraction, the impact on labor rights, the number of workers affected and the conduct of the employer will be considered.

11. The law has provided for the possibility that after 2 years from the declaration of the sentence classifying the companies as sole employer, the termination of such classification may be requested before the corresponding Labor Court.

12.  This new law becomes effective, except for the exceptions contained therein, on October 1, 2021.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Department of Labour makes a statement on the readjustment of variable salary targets for working mothers’ right to feed their children.

On April 16, 2021, the Department of Labour issued a debatable statement by means of Ordinary No. 1259, in which it states its opinion regarding what happens to female workers with children under 2 years of age while exercising the right to feed and who receive variable salaries. Specifically, this statement indicates the following:

1. According to the Department of Labour, the time used by a working mother in exercising the right to feeding contemplated in article 206 of the Labor Code, should be considered by the employer when establishing the rules that will regulate the payment of a variable salary subject to the fulfillment of goals.

2. In this regard, the Regular points out that the fact of not considering this period in the calculation of the readjustment of goals for female employees would represent a disadvantage in relation to their co-workers who have the entire working day available.

3. In the opinion of the Department of Labour, such a circumstance would not be in accordance with the law and could constitute a discriminatory act in the labor field, in view of a possible affectation of the principle of equal salaries.

4. In this sense, the Ordinary also provides that, if the employer recalculates the fulfillment of the monthly goals, it must pay the eventual differences that may have occurred in favor of such workers, provided that such obligations are not statute-barred.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

A new Immigration Law is enacted, which replaces the current Immigration Law

On April 11, 2021, the New Immigration Law was enacted, which replaces the current Immigration Law. Among other things, this law contemplates the following:

1. The law creates the National Migration Service to streamline immigration processes, which will have a term of 1 year for its implementation as of the date of publication of this law.

2. The law incorporates 13 new categories of visas to obtain temporary residence in Chile.

3. The law establishes that future migrants who wish to come to Chile must apply for their residence visa at the Chilean consulate of their country of origin. This would allow foreigners to enter Chile with their identity card and valid routine.

4. Regarding foreign citizens who have a regular migratory situation, the law provides that they will have 180 days to process their visas inside our country. If they do not comply with this, they will be returned to their countries of origin.

5. On the other hand, those foreigners who have an irregular migratory situation, according to the law, will have 60 days to leave Chile and process their residence visas in the consulates of their respective countries in case they wish to return to Chile.

6. The New Immigration Law establishes that when a foreign citizen’s temporary residence visa expires, he/she will have a term of 9 months to request an extension to extend his/her stay in the country. In order to do so, he/she must pay any outstanding fines.

7. This law details new crimes that are considered as grounds to prohibit the entry of foreigners to Chile, or to deport those who are already in the country, such as femicide, kidnapping of minors, illicit drug trafficking, among others.

8. This law will enter into force once its regulations are published.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Complement to the changes announced by the Government to the Step by Step Plan, and the publication of a list of essential household goods.

On 7 April 2021, the Government published, as a complement to the changes announced to the Step-by-Step Plan, a list of essential household goods, which may be sold in quarantine, thus complementing the definition of “essential household goods” established in paragraph 12 of Title I of the Instructions for Movement Permits.

A list of goods is established for each of the categories included in the respective definition, indicating that these goods would be by way of example and without being exhaustive. Specifically, it states that they are:

1. Goods relating to the survival of the person:

food and drink

sanitary products;

products necessary for personal hygiene;

cleaning items;

items necessary for maternity and early childhood;

articles for pets; and

articles for the maintenance of gardens, plants and green areas.

2. Goods relating to telework or distance learning:

electronic goods; and

office supplies.

3. Goods relating to the operation, maintenance and security of the building:

kitchen items

bedroom articles

bathroom articles

laundry items;

household appliances and white goods;

hardware;

furniture; and

lighting.

4. Other essential goods: batteries and vehicle batteries, matches and lighters, tobacco, fuels, tyres, battery jumper cables, oils and lubricants, vehicle maintenance materials, among others.

This list is effective as of 7 April 2021, as of 05:00 hours.

Should you require further information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Changes announced by the government to the Step-by-Step Plan, including those relating to the Single Collective Travel Permit.

On 1 April 2021, the Government announced a series of modifications to the Step by Step Plan, including those related to the Single Collective Permit included in the Instructions for Travel Permits, accompanied by Official Communication No. 6421, dated 22 March 2021, signed by the Ministers of the Interior and Public Security and of National Defence. Specifically, these amendments provide for the following:

1. Some essential tours and activities are temporarily eliminated, this measure being in force for 15 days, after which their continuity will be evaluated. The tours are: (i) retail sale of clothing and clothing accessories; (ii) footwear in specialised trade; and the (iii) wholesale of perfumes, toiletries and cosmetics.

2. The concept of essential household goods is modified and restricted, thereby limiting the essential goods and services that may be accessed by means of delivery.

3. The notion of essential civil servant is redefined, being understood as one who performs operational, logistical and productive tasks, maintenance of security systems or cleaning and sanitisation. This definition includes those workers who provide minimum services that must be ensured in the event of a strike. On the other hand, administrative, accounting, financial, advisory and consultancy work is excluded from this definition.

4. The Single Collective Permit includes the obligation to report: i) the total number of workers in the company; ii) the number of workers or service providers considered essential; and iii) the work of the worker considered essential.

5. Finally, the penalties applicable to non-compliance with the measures indicated correspond mainly to i) administrative fines (sanitary inquiries by the SEREMI of Health, which could even lead to the closure of the establishment and inspections by the Department of Labour); and ii) the configuration of the offences established in articles 210, 318, 318 bis and 318 ter, all of the Penal Code.

6.  These amendments are understood to be in force as of 5 April 2021, as of 05:00 hours.

Should you require further information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Department of Labour publishes ruling that establishes doctrine on Health Emergency COVID-19.

On 1 April 2021, the ruling of the Department of Labour N°1190/012 was published, which establishes the doctrine on the COVID-19 sanitary emergency, ruling out the employment relationship that could eventually be alleged with respect to companies that need to request collective posting permits for workers of temporary service companies, subcontractors or contractors. Specifically, this ruling states the following:

1. According to the ruling, the request for collective posting permits by the main or user undertaking in respect of workers of temporary service providers, subcontractors or contractors cannot be considered as an indication of an employment relationship, even if such a particularity persists over time.

2. According to the ruling, this is due to the fact that the employment relationship maintained by these workers is with the contractor or subcontractor, or with the temporary service company, and not with the main or user company.

3. Finally, the ruling states that this circumstance would not change, even if it is the main or user company that requests the single collective posting permit for such workers in accordance with the provisions of the Instructions for Posting Permits, since we are dealing with a requirement that does not emanate from the will of the person requesting the permit, but is proposed by the authority, being an extraordinary measure that aims to prevent and protect the spread of Covid-19.

Should you require further information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

The Labour Directorate complements its COVID-19 health emergency doctrine by allowing employers to require their workers to take a PCR test.

On 1 April 2021, the Labour Directorate published ruling No. 1189/011, which complements the doctrine established in the COVID-19 health emergency by ruling No. 1124/010 of 30 March 2021. Specifically, this ruling states the following:

According to the ruling, it is the employer who has the primary responsibility to effectively protect the life and health of workers.

In this regard, the ruling states that it is possible for the employer to require its workers to undergo a PCR test as a suitable mechanism to prevent and control the spread of Covid-19, especially in the place where the workers carry out their work.

Finally, the ruling states that the measure will be considered legally admissible, provided that the economic cost is covered by the employer, that the application of the test does not constitute discriminatory conduct, and that it does not violate the fundamental rights of the workers.

Should you require further information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Labour Directorate publishes opinion that establishes doctrine on COVID-19 Sanitary Emergency.

On 30 March 2021, the Labour Directorate published its ruling No. 1124/010, which sets out the doctrine on the COVID-19 health emergency. Specifically, this ruling states the following:

1. According to the ruling, if the worker has not been granted medical leave by virtue of the instructions issued by the health authority, he/she has no justification for not attending to provide the services for which he/she has been hired, except by virtue of an act of authority.

2. Notwithstanding the above, the ruling states that an employer may not refuse to allow its employees to perform services because they do not have a negative PCR test for COVID-19, unless there is a suspicion of contact that requires the employee to go to a health care facility.

3. In addition, the ruling states that employers seeking to establish pandemic control mechanisms should incorporate them into the company’s internal regulations on order, hygiene and safety.

Should you require further information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

On 19 March 2021, the Labour Directorate published its ruling No. 1000/009, which establishes the doctrine on the statute of limitations for labour fines. Specifically, this ruling states the following:

On 19 March 2021, the Labour Directorate published its ruling No. 1000/009, which establishes the doctrine on the statute of limitations for labour fines. Specifically, this ruling states the following:

1. As indicated in ruling 024731N19 dated 12 September 2019, of the Office of the Comptroller General of the Republic, the statute of limitations period for liability for administrative offences is 5 years, counted from the time the offence is committed.

2. Notwithstanding the foregoing, prior to the issuance of this opinion, the statute of limitations for administrative fines was administratively considered to be 6 months.

3. Therefore, the Directorate of Labour comes to set doctrine in this regard, establishing that applications for the declaration of prescription of fines that were filed at a time prior to 12 September 2019, must be resolved considering the limitation period of 6 months.

4. Thus, all applications that are filed after 12 September 2019, should consider the ordinary limitation period of 5 years.

Should you require further information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

The Labor Directorate publishes an opinion that establishes the doctrine regarding the Electronic Payroll Book.

On March 10, 2021, the Labor Directorate published its ruling No. 877/006, which establishes the doctrine related to the Electronic Remuneration Book. Specifically, this ruling states the following:

1. The Labor Directorate authorizes the compliance with the obligation to keep an Auxiliary Payroll Book to be complied with by means of electronic processes, through an Electronic Payroll Book.

2. In this sense, the Electronic Payroll Book shall fully and irrevocably replace the Auxiliary Payroll Book.

3. For this purpose, the Labor Directorate has set up an electronic platform in its web portal, in order for employers to report standardized and monthly payroll payments.

4. Additionally, a general regime is established that includes the form and opportunity for employers to report salaries and other non-remunerative allowances.

5. Finally, the Labor Directorate establishes that, during the first year of implementation of the Electronic Payroll Book, exceptional rules will be applied to comply with the electronic registry system.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

A decree was published extending the validity of the employment protection law until June and increasing the unemployment insurance benefits, incorporating 3 new benefits.

On March 6, 2021, Decree No. 279 of the Ministry of Finance was published, which extends the validity of the employment protection law until June 2021, and increases the unemployment insurance benefits by incorporating 3 new payments from the Solidarity Unemployment Fund. Specifically, this decree contemplates the following:

1. Extends the validity of benefits and benefits established in the employment protection law, as from March 6, 2021 and until June 6, 2021.

2. It extends the granting of up to a fifteenth transfer from the Solidarity Unemployment Fund, from March 6, 2021 and until June 6, 2021, incorporating 3 new transfers.

3. In the same sense, it indicates that as from the sixth transfer, the average percentage of remuneration of these transfers is established as 45% of the remuneration.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Labor Directorate publishes a ruling that complements doctrine related to telework and telecommuting.

On January 22, 2021, the Labor Directorate published its ruling No. 258/003, which complements the doctrine related to telecommuting and teleworking. Specifically, this opinion states the following:

1. The obligation to provide the equipment, tools and materials for telecommuting or teleworking, will be enforceable from the moment of agreeing such modality.

2. In turn, such obligation does not prevent the parties from agreeing that the worker may use elements of his property and that the employer may pay a reasonable and sufficient amount for its use for work purposes under an allowance.

3. Meanwhile, the allowance of collation that is agreed within the framework of teleworking maintains its compensatory nature and its granting must be made under the agreed terms. In addition, to grant, terminate or modify such allowance, will always require the written manifestation of both parties.

4. In the case of teleworkers excluded from the limitation of working hours, the parties are not obliged to agree on the mechanisms of supervision or control that will be used to supervise or control their functions.

5. Regarding the right to disconnection, the ruling states that this must be exercised considering that, in the case of workers who freely distribute their working hours, it is necessary for the worker to communicate the moment in which he/she will decide to initiate the right to disconnection in order to compute the 12 hours in which he/she is exempted from his/her obligation to respond to the employer’s requirements.

6. On the other hand, it is not appropriate for an employee excluded from the limitation of working hours to report the beginning or end of the period in which he/she makes effective use of the right to disconnection.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Labor Department publishes ruling on the effects on the position of union leader at the time of registration of candidates for the Constitutional Convention.

On January 11, 2021, the Labor Department published its statement No. 050/002, which pronounces on the effects that occur in the position of union leader, at the time of registering a candidacy for the Constitutional Convention. Specifically, this opinion states the following:

1. When a union leader registers a candidacy for the Constitutional Convention, his functions are suspended, but this does not imply the loss of union privileges.

2. The above mentioned suspension, in case of being elected, will last for the entire period of the Convention, and, in case of not being elected, the suspension will be maintained until the proclamation of the members of the Convention.

3. In the event that his union mandate ends after the end of his participation in the constitutional process, that leader shall return to his functions for the time remaining, maintaining his immunity for the aforementioned period and for up to 6 months of cessation in his position.

4. If the term of the union mandate ends during the period of candidacy to the Convention or during the exercise of the functions as a constituent, the union director will have a jurisdiction for 6 months from the moment he ceases to be a union leader.

5. It will be the union organization by means of the established in its statutes that will be able to determine the way to replace that leader registered to integrate the Constituent Convention.

6. If the suspension of the functions of the union director produces an impediment in the functioning of the board, a new complementary election must be held to give continuity to the functions of the board while the suspension of functions lasts.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

The Labor Department publishes an official notice on the meaning and scope of the “act or declaration of the competent authority”, for the purpose of accessing additional Unemployment Insurance rotations

On January 6, 2021, the Labor Department published its ruling No. 032/001, which establishes the doctrine regarding the meaning and scope of “act or declaration of competent authority”, for the purpose of accessing additional transfers from the Unemployment Insurance Solidarity Unemployment Fund. Specifically, this opinion states the following:

1. That for purposes of determining whether a particular activity is affected by an “act or declaration of competent authority”, compliance with the requirements regulated in the Employment Protection Act must be met.

2. That the measures provided for in the “Step by Step” Plan, complying with the aforementioned requirements, could constitute an act or declaration of authority that allows the affected workers to access additional transfers from the Unemployment Insurance Solidarity Unemployment Fund.

3. That, the measures contained in Supreme Decree No. 102, as amended by Supreme Decree No. 455, both of the Ministry of the Interior and Public Security, relating to the temporary closure of places authorized for the entry and exit of foreigners, to the extent that they meet the aforementioned requirements, could constitute an act or declaration of authority authorizing the workers affected by the above-mentioned benefits.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Labor Department publishes ruling that reconsiders the doctrine regarding the opportunity to comply with the obligation to hire people with disabilities

On December 30, 2020, the Labor Department published its ruling No. 3376/035, which reconsiders the doctrine regarding the opportunity to comply with the obligation to hire people with disabilities or who are assigned a disability pension. Specifically, this opinion states the following:

1. The fulfillment of this obligation must be accredited by means of electronic communication for the months of the current year, starting in January 2022.

2. The same communication must indicate the alternative measures that comply with the hiring obligation and the justified reasons for it.

3. During the year 2021, compliance with the hiring obligation for the months of the previous calendar year must be accredited. On the other hand, from 2022 onwards, said compliance must be proven for the months of the current year.

4. The workers covered by the Employment Protection Law must be counted for the purposes of determining the total number of workers in the company.

If you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Law is published that extends the scope of application of the labor protection procedure to public officials

On November 9, 2020, Law No. 21.280 was published, a regulation that extends the scope of the labor protection procedure to public officials. Specifically, this law provides for the following:

1. This amendment establishes that the rules applicable to the labor protection procedure are applicable to all workers, including officials of the State Administration, the National Congress and the Judiciary. Also, to the workers of the companies or institutions of the State or of those in which the State has contributions, participation or representation whenever such officials or workers are subject by law to a special statute.

2. It is also stated that the procedure of guardianship will apply to workers who work in the Public Ministry, the Constitutional Tribunal, the Electoral Service and Electoral Justice, the General Comptroller of the Republic, the Central Bank and those who are declared autonomous by their own laws.

3. The law amends the Labor Code by extending the powers of the Labor Department for purposes of inspection and interpretation in the scope of the labor protection procedure.

4. It is established that, in these cases, the payment of the substitutive indemnity of previous notice and the indemnity for years of service will not proceed, with respect to the workers indicated in point 1 and 2 of this presentation, the judge granting instead, an indemnity that will not be less than 6 months nor greater than 11 months of the last monthly remuneration.

5. Finally, in these cases, the law determines that when the judge declares the dismissal to be discriminatory and it is also qualified as serious, the worker may choose between compensation or reinstatement.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

A new law has been published that adjusts the amount of the Minimum Monthly Income, the family and maternal allowance, and the family subsidy.

On November 7, 2020, Law No. 21.283 was published, which readjusts the Minimum Monthly Income, the family and maternal allowance and the family subsidy. In the core and related to the Minimum Monthly Income, this law provides for the following:

1. As of September 1, 2020, the Minimum Monthly Income is increased to $326,500, for workers between 18 and 65 years old.

2. As of September 1, 2020, the Minimum Monthly Income will be increased to $243,562, for workers under 18 and over 65 years of age.

3. As of September 1, 2020, the Minimum Monthly Income is increased to $210,458, for non-wage purposes.

4. In April 2021, the President of the Republic must present a new bill proposing an adjustment to this Minimum Monthly Income, with the intent of commencing on May 1, 2021.

5. It also establishes that the greatest expense represented by the application of this law in the year 2020 will be financed with public funds and in the year 2021, the resources will be indicated in the Budget Law.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Law is published that modifies the Labor Code to require certain companies to adopt measures that facilitate the inclusion of workers with disabilities.

On October 21, 2020, Law No. 21.275 was published, amending the Labor Code to require the relevant companies to adopt measures to facilitate the labor inclusion of workers with disabilities. In the core, this law provides for the following:

At least 1 of the workers in human resource-related functions and within companies with 100 or more workers it is required to have specific knowledge in areas that promote the employment inclusion of people with disabilities.

The aforementioned knowledge will be considered sufficient when they have a certification granted by the National System of Certification of Labor Competencies.

These companies must promote policies on matters of inclusion, which will be reported annually to the Labor Department, and must also prepare and execute annual training programs for their personnel.

This law will come into force on November 1, 2022.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Labor Department issues ruling on the right of workers to vote in the referendum of October 25, 2020

On 19 October 2020, Resolution No. 2760/025 was issued by the Directorate of Labor, concerning the referendum of 25th October, in which it pronounces on the permits that must be granted to workers to participate in the referendum voting In general terms, this opinion includes the following:

Sunday, October 25, 2020 is a mandatory holiday for workers who provide services in shopping centers or commercial complexes managed by the same company name or legal personality; consequently, such employees are free to provide services during that day.

On the other hand, workers who are not included in the previous situation and who are legally exempted from Sunday rest and holidays, and therefore have to provide services on Sunday October 25, are entitled to be absent from their work for a period of 2 hours to attend to cast their vote, without this implying a reduction in their wages. Likewise, they have the right to be granted the necessary permits to carry out the functions of member of the polling station, member of the Vote Counting Association or delegate of the Board of Elections.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Law is published that adapts the Labor Code in terms of protection of children and adolescents in the workforce.

On September 30, 2020, Law No. 21.271 was published in the Official Gazette, which amended the Labor Code, adapting it to protect children and adolescents in  the workplace. In particular, this legal amendment contemplates the following:

1. The Labor Code is modified, in that part which contemplated the distinction between adults and minors under eighteen, but over fifteen. By virtue of this law, categories of adolescents are established, with and without age to work respectively.

2. It also establishes an additional category, which is that of children, who in theory are not allowed to be hired, unless certain formalities established in the law are complied with. This legal amendment defines what is meant by “protected adolescent work” and “dangerous work.

3. It establishes that, in qualified cases, children and adolescents who are not old enough to work may enter into contracts to participate in certain shows, with the employer having to adopt effective protection measures and agree on their working hours, always in the best interest of the child or adolescent. It is also added that the employer must pay for transportation and food in adequate conditions.

4. The period during which the adolescent may not work at night is extended to 13 hours, with this limitation governing between 9:00 p.m. and 8:00 a.m.

5. A series of special sanctions are incorporated for employers who fail to comply with any of these limitations.

6. This law will come into force on the first day of the month following the publication of the regulations issued by the Ministry of Labor and Social Welfare, which determine the activities considered as hazardous work and establish guidelines to avoid this type of work.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Ministry of Finance published Decree Nº1.578 which extends the term of benefits of the Employment Protection Law and grants the right to additional transfers from the Solidarity Unemployment Fund.

On October 5, 2020, Decree No. 1578 was published in the Official Gazette, extending the term of the benefits of the Employment Protection Law and granting the right to additional transfers from the Solidarity Unemployment Fund. In specific terms, the Decree contemplates the following:

1. It extends, from October 6, 2020 and until January 6, 2021, the validity of the benefits of the Employment Protection Law.

2. From October 6, 2020 and until January 6, 2021, up to one tenth of the amount to be paid from the Solidarity Unemployment Fund under Law No. 19.728, is granted to the beneficiaries who, during such period, are entitled to the Employment Protection Law benefits paid from the Solidarity Unemployment Fund. As of the sixth draft, the average percentage of remuneration of these drafts is established at 45%, and the value of the benefits associated to the mentioned drafts is set at $419,757, and a lower value of $225,000.

3. It extends from October 31, 2020 and until January 6, 2021, the validity of the benefits and allowances established in Law No. 21,263, with respect to Law No. 19.728.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Ministry of Finance publishes the Decree that orders the payment of the 6th and 7th drafts, with a subsidy payment of 45% of the average remuneration (Unemployment Insurance and Employment Protection Law)

On September 25, 2020, Decree No. 1434 of the Ministry of Finance was published in the Official Gazette, establishing parameters and improving benefits of the unemployment insurance and the employment protection law. As applicable, the decree orders the following:

As of August 1, 2020 and until October 31 of the same year, the average percentage of remuneration corresponding to the fifth line of business charged to the Solidarity Unemployment Fund of Law No. 19.728, applicable to both the Unemployment Insurance and the benefits paid under the Employment Protection Law, is increased to 55%. The higher value of such draft is fixed at $513,038.

It extends, as from August 1, 2020 and until October 31 of the same year, a sixth and seventh draft from the Solidarity Unemployment Fund of the Unemployment Insurance Law, applicable to the benefits paid from such fund under the Employment Protection Law.

As from August 1, 2020 and until October 31 of the same year, the percentage of the average remuneration corresponding to the sixth and seventh drafts charged to the Solidarity Unemployment Fund of Law No. 19,728, applicable to the benefits paid from such fund under the Unemployment Insurance and Employment Protection Law, is increased to 45%. The upper value of such benefits is set at the amount of $419,757 and its lower value at the amount of $225,000.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Law Published which makes access requirements more flexible and it increases the amounts of unemployment insurance benefits and improves the benefits of Law No. 21.227

On September 4, 2020, Draft Law No. 21.263 was published in the Official Gazette, which temporarily provides greater flexibility to the access requirements and increases the amount of unemployment insurance benefits under Law No. 19.728 and improves the benefits under Law No. 21.227. The most relevant aspects of this law are as follows:

A. It temporarily provides more flexibility to access requirements and increases the amount of unemployment insurance benefits under Law No. 19.728.

1.Law No. 21,263 provides that workers affiliated to the unemployment insurance who are unemployed may have access until October 31, 2020, to the benefits charged to the Individual Unemployment Account and to the withdrawals charged to the Solidarity Fund, if they comply with any of the requirements of the first paragraph of article 2 of Law No. 21,227 on Employment Protection, regarding the number of contributions.

Unemployed workers who meet the requirements set forth in Section 12 and Section 24, first paragraph, of Law 19.728, which establishes Unemployment Insurance, shall also be entitled to benefits under the conditions indicated in this law.

2. This legal amendment improves the benefits to be paid from the funds of the Individual Severance Account, establishing that they will be calculated on the average of the remunerations accrued by the worker in the last 3 months in which contributions are recorded, prior to the end of the contract, as follows: the first month 70%, the second, third, fourth and fifth month 55% and the sixth month or more 50% of the average remuneration. When the resources of the Individual Severance Account are insufficient, the benefits shall be financed from the Solidarity Fund.

3. On the other hand, it is established that the benefits to be paid from the Solidarity Unemployment Fund will include a maximum of 5 benefits in the percentages indicated below, which will be calculated on the average of the remunerations accrued in the last 3 months in which contributions are registered: 70% in the first month, 55% in the second, third and fourth months and 45% in the fifth month. In addition, these benefits will be affected to higher and lower values for each month, as follows: the first month a higher value of $652,956 and lower of $225,000, the second, third and fourth month a higher value of $513,038 and lower of 225,000 and the fifth month a higher value of $419,757 and lower of $225,000.

However, the law determines that a supreme decree issued by the Ministry of Finance, and also signed by the Minister of Labor and Social Welfare, will establish the parameters that will allow, during the effectiveness of this law, to increase the percentage of the average remuneration of the fifth turn, being able to reach a percentage of the average remuneration of 55%, in which case it must also fix the superior value of the benefit, which will be increased proportionally until reaching the value of $513,038, in case the average percentage of remuneration is increased to the maximum limit of 55% of the same. The parameters to be considered will be, among others, the health and labor market conditions, and the regional realities associated with the impact of the COVID-19 disease.

This law also establishes that the beneficiaries who are receiving the fifth line of payment from the Solidarity Fund will be entitled, during the term of this law, to a sixth and seventh line of payment, equivalent to 30% of the average remuneration. Likewise, the percentage of the average remuneration of the sixth and seventh draft may reach a percentage of the average remuneration of 45%, if the parameters established in the Supreme Decree mentioned above are met, in which case the higher value of the benefit must also be fixed, which will be increased proportionally and may not be higher than the amount indicated for the fifth draft according to the table in the second paragraph of article 4 of this law.

4. Unemployed workers who are affiliated to the unemployment insurance, and who do not meet the access requirements of article 12 of Law 19.728, may only apply for the benefits to be charged to their Individual Account for Unemployment, up to the number of months and in the respective percentages that they can finance.

5. During the term of this law and until October 31st, 2020, access to the benefits of the Unemployment Insurance shall be governed by the percentages and values of this law.

B. The benefits of Law No. 21.227 are perfected.

6. During the term of this law and until October 31, 2020, the suspension of contracts regulated by Article 2 of the Employment Protection Law shall be governed by the rules set forth in the preceding points.

7. In turn, the parameters set forth in the third paragraph of article 4 of Law No. 21.263 will allow an increase, during the term of the law, of the percentage of the average remuneration of the fifth line of business corresponding to the workers subject to Law No. 21.227, which may reach a percentage of the average remuneration of 55%, in which case the higher value of the benefit must also be set, which will be increased proportionally and may not exceed $513,038.

8. In case the sanitary conditions so merit and the parameters established in the decree indicated in the third paragraph of article 4 are met, the Minister of Finance, by means of one or more supreme decrees, which will also be signed by the Minister of Labor and Social Welfare, may increase the percentage of the average remuneration of the fifth line of business.

9. Likewise, the parameters indicated in the third paragraph of article 4 will serve to determine the potential extension of the drafts to be carried out by the Solidarity Unemployment Fund, granting a sixth and seventh draft until October 31, 2020.

10. The decree will establish the percentage of the average remuneration to be considered, which may not be higher than 45%, and the higher and lower values of the benefit, which may not exceed the values of the fifth round according to the table in the second paragraph of article 4, being fixed proportionally.

11. In the case of workers who, as of August 2020, are entitled to receive the fifth payment from the Solidarity Unemployment Fund, pursuant to Law No. 19,728 or Title I of Law No. 21,227, the percentage of the average remuneration on which such payment will be calculated shall be 55%, the higher and lower values being adjusted according to the table in the second paragraph of Article 4, without the need to issue the supreme decree referred to in such law and in the third paragraph of Article 7 of this law.

12. It is also established that the agreement for the temporary decrease of working hours may be signed until July 31, 2021

13. Within the term of three months counted from the publication of the present law, and before the term of validity of the norms indicated in the following literals, the Ministry of Finance, by means of one or more supreme decrees, signed, in addition, by the Minister of Labor and Social Welfare, may:

– Extend, as of the date of its expiration, the validity of the benefits and allowances set forth in Title I of Law No. 21.227, and also grant the right to additional drafts charged to the Solidarity Unemployment Fund of Law No. 19.728 in the event described in the first paragraph of Article 1 of Law No. 21.227, under the terms and conditions set forth in this law for a maximum period of five months;

– Extend, as of the date of its expiration, the validity of the benefits and allowances established in Title II of Law No. 21.227, under the terms and conditions set forth in said legal body, for a maximum period of five months; and

– To extend, as of the date of its expiration, the validity of the benefits and allowances established in this law, with respect to Law No. 19,728, for a maximum period of five months.

The aforementioned supreme decrees must be issued in consideration of objective circumstances, among others, the health conditions of the country, labor market conditions or regional realities associated with the impact of the COVID-19 disease.

14. The workers covered by the provisions of Titles I and II of Law No. 21.227, on Employment Protection, may enter into new employment contracts of a transitory nature with other employers, without losing their employment relationship or the payment of benefits from unemployment insurance.

15. It is established that in the event that the effects of the suspension of the labor relationship under the Employment Protection Law cease, the employers at the time of reinstatement of the workers shall not discriminate in the treatment or establish arbitrary differences between those who had their contracts suspended unilaterally by act of authority, and those who suspended their contracts by common agreement.

C. General Provisions.

16. This law shall enter into effect on the date of its publication in the Official Gazette and shall be in force until October 31, 2020. Notwithstanding the foregoing, for purposes of access, calculation and payment of benefits, it shall be understood that it entered into force on August 1, 2020.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)