01. Are private companies required to implement a Contingency Plan?
A.: Although Order no. 2836-A/2020 obliges only public employers to prepare a contingency plan in line with the guidelines issued by the Directorate General of Health, within the scope of prevention and control of infection by new Coronavirus (COVID-19), it is the obligation of the private employer to ensure their workers safety and health conditions, on a continuous and permanent basis, taking into account the general principles of prevention, through the legal regime for the promotion of safety and health at work, established by Law no. 2836A/2020.102/2009, of September 10, in its current wording. The Contingency Plan should be disclosed to all employees and posted in the company’s style locations.
02. What should the Contingency Plan contain?
A.: The Contingency Plan should include aspects such as:
a) immediate measures; b) specific measures to combat the danger of contagion and, within them, basic hygiene medications and environmental hygiene measures;
c) specific procedures to be adopted before: suspect case, asymptomatic person returned in the last 14 days from an area with active community transmission and asymptomatic person with contact with a confirmed case; d) exceptional measures; e) legal-labor framework.
In the immediate or first line measures, the employees with the highest risk of infection should be identified, namely those who have a history of pre-existing diseases, such as cardiovascular diseases, diabetes, chronic respiratory diseases, hypertension and cancer and, naturally, pregnant workers.
03. What duties do the employer and worker have?
A.: If, on the one hand, the employer, under the terms of Article 127 of the Labor Code, has the duty to “prevent occupational risks and illnesses, taking into account the protection of the safety and health of the worker (…), adopt, with regard to safety and health at work, the measures deriving from the law (…) and provide the worker with adequate information and training to prevent risks of (…) illness”, on the other hand, the worker also has the duty, under the terms of Article 128 of the Labor Code, to “prevent occupational risks and illnesses, taking into account the protection of the safety and health of the worker (…), to adopt the measures deriving from the law (…) and provide the worker with adequate information and training to prevent risks of (…) illness”. According to the Article 128 of the Labor Code “comply with the employer’s orders and instructions concerning the execution or discipline of work, as well as safety and health at work, which are not contrary to his rights and guarantees, cooperate to improve safety and health at work (…) and comply with the requirements on safety and health at work arising from the law (…)”.
This includes, as part of the general duties of loyalty and cooperation on safety and health at work, the obligation for the worker to inform the employer if he has symptoms or presents a danger to colleagues.
04. Can the employer demand to know if the worker has recently traveled to countries identified as areas with active community transmission?
A.: Yes. The rule is that the employer may not interfere in the privacy of the employee. However, given the current pandemic context, it is the employer’s duty to ensure safety and health conditions in the workplace.
05. What if a worker is infected, by the symptomatic picture he presents or has returned from one of the countries with a high number of confirmed cases of contagion?
A.: The employer must exempt him from attending the company until his state of health is ascertained. However, during the leave, and until the competent health authority decides on the suspect case, the employer must continue to pay the worker’s remuneration, who should not be penalized for his symptomatic condition.
06. When should the company use telework or remote work?
A.: If the worker’s activity is compatible with that scheme and if the employer can provide the worker with the tools necessary for that purpose and bear the costs associated with that activity. It should be warned that the teleworking regime must obey a formalization that obeys its own rules.
07. What if the worker refuses to telework?
A.: In the current context, and during the duration of the exceptional measures, teleworking may be determined unilaterally by the employer or requested by the employee, without the need for an agreement, as long as it is compatible with the functions performed. – Article 29 of Decree-Law no. 10-A/2020, of March 13.
Even if the teleworking regime, under the terms of Article 166 of the Labor Code, requires agreement and written form, if the employee with suspicions of infection refuses to leave the company or to practice teleworking – the same being a possibility – and fails to comply with the Contingency Plan, he may be subject to disciplinary proceedings for disobedience, without prejudice to being held responsible under the general terms of the law.
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