On November 24, 2021, Law No. 21.391 was published in the Official Gazette, which adds Article 206 bis to the Labor Code, establishing the modality of telecommuting or teleworking for the care of children and people with disabilities, in the event of a state of constitutional exception of catastrophe, public calamity or a health alert due to an epidemic or pandemic caused by a contagious disease. Specifically, this law provides as follows:

1. If the authority declares a state of constitutional exception of catastrophe, by public calamity or a health alert on the occasion of an epidemic or pandemic due to a contagious disease, the employer shall offer the worker who has the personal care of a child in preschool stage, the modality of teleworking, to the extent that the nature of their duties permit. In such case, if both parents are workers, and have the personal care of a child, any of them may make use of this prerogative, at the choice of the mother.

2. The previous rule will be applied for those workers who have in their care persons with disability, circumstance that must be accredited through the respective certificate of inscription in the National Registry of Disability, which must be accompanied by a copy of the certificate, credential or registration of disability corresponding to the person whose care they have. The disability of the latter may also be accredited through the quality of assignee of a disability pension of any social security system.

3. On the other hand, if the authority declares a state of constitutional exception of catastrophe, by public calamity or a sanitary alert on the occasion of an epidemic or pandemic due to a contagious disease, and adopts measures that imply the closing of basic education establishments or prevent the attendance to them, the employer shall offer to the worker who has the personal care of the child under 12 years of age that is affected by such circumstances, the modality of telework, to the extent that the nature of his functions allows it. In this case the worker shall deliver to the employer a sworn statement that such care is exercised without the help of another adult person.

4. The modality of work shall remain in force during the period of time in which the circumstances described above are maintained, unless otherwise agreed by the parties.

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