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.
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