Should I have a contingency plan in the company? What measures should the plan provide for? May the company isolate its employees, and/or conduct health check-ups or questionnaires on their private lives?

Although the law, notably Decree no. 69/2020, does not expressly require companies to prepare and put in place a Contingency Plan, such obligation appears to be required under the general principles of prevention to which employers are subject to, embodied in their duty to provide their employees with continuous and permanent safety and health conditions.

Hence, in the current context, although the law does not expressly state it, companies should adopt a Contingency Plan in connection with COVID-19 infection, which must contain:

  • a list of the workplaces which are temporarily closed and those that will operate;
  • the composition of the teams providing work;
  • the scheme under which the members of the teams should provide work (either in the workplace or at home);
  • rules pertaining to the organization of the work and interaction between employees at the company’s premises and at home;
  • the procedures to be adopted in case any employee shows symptoms of COVID-19;
  • hygiene and safety measures to be enforced within the establishments especially aimed at preventing the spread of COVID-19, namely those established in the legal provisions, as follows:
    • Body temperature check prior to the begging of each working day;
    • Disinfection of facilities and equipment;
    • Proper ventilation of facilities; and
    • When applicable, reduction to a maximum capacity of 40 (forty) people, in meetings or places of agglomeration, except for those situations that cannot be postponed related to the State functioning.

Workers revealing flu-like symptoms or that are feverish must abstain from being present at the institutions’ facilities.

In addition, to the extent that some employees may be more prone to contagion, specific measures should be considered to ensure an increased level of protection in such specific cases. Such measures should, as far as possible, be assessed in conjunction with the Occupational Safety and Health Services, as well as in conjunction with the recommendations of health authorities.

On the other hand, the Labour Law admits that, in the context of the execution of the labour contract, the company may require the employee to undergo or be submitted to medical tests or examinations to evidence his/her physical or mental condition to perform his/her functions.

However, under the terms of the same law, the employee has the right to privacy and to not allow access and disclosure of information related to the employee's intimate and personal life, including his or her state of health.

 

Do I have to adopt special measures regarding pregnant employees, employees with reduced working capacity, with breathing difficulties or under-aged employees?

Employees who are infected with COVID-19 are exempted from work (on-site or teleworking), as well as employees for whom some health authority has determined an active surveillance/prophylactic isolation situation (quarantine).

The following employees are entitled with a special protection:

  • pregnant employees;
  • employees aged 65 or over;
  • employees with a chronic disease considered to be at notably, immunosuppressed employees, kidney disease patients, hypertensive employees, diabetics, cardiovascular patients, employees with chronic respiratory disease and cancer patients.

To the extent that there are employees in one of the situations described above, specific measures should be considered to ensure an increased level of protection in these specific cases. Such measures should, when possible, be linked to the recommendations of the health authorities. In addition, employees who are in the conditions described above and who must provide services during the period of the state of public calamity, have priority in the release to work on-site.

 

May I require an employee to work at home or do I need his/her consent?

Telework may be required by the company, since the law determines that it is up to each company to define the modalities of work from home, as long as it is compatible with the employees’ duties, thus, the employees’ consent is not required.

Employees may also ask to perform telework, as long as this type of work is compatible with the nature of functions to be performed.

Work insurance policies normally cover issues relating to incapacity for work, death as a result of an accident or illness, and occupational diseases. To this end, the insurance policy for accidents at work and professional diseases should be accessed to determine whether or not the risks are covered in this new reality.

 

Do I have any special duty of information towards my employees?

Although recent legislation relating to COVID-19 does not provide for any obligation to inform the company’s employees, it is essential that, employers keep employees regularly informed about measures to prevent and control the abovementioned disease, as well as define the measures to be adopted in a rotational work system and telework. In particular, the company's Contingency Plan should be known to all employees, and its disclosure will necessarily have to take this concern into account. In addition, mechanisms should be introduced to facilitate contact between the company and the employees, with respect for private intimacy, but also ensuring a centralized monitoring and treatment of issues.

 

Being prophylactic isolation of employees necessary or recommended, should I wait for a decision by the health authority or can I determine it in a preventive manner? Will employees in isolation be able to continue working from home?

The employees who have recently entered the country and have had contact with confirmed cases of COVID-19 must be subject to a 14-consecutive days compulsory home quarantine.

In addition, when there are well-founded suspicions of contagion by COVID-19, the isolation of the employee should, as far as possible, result from a decision of the health authority. Should it not be possible to obtain such decision in due time, the isolation - and consequent abandonment of the company's premises, if this is the case - should be determined by the employer, in articulation with the union representing the company's employees or, in the absence of the latter, the union of the company's sector of activity and the National Directorate of Labour.

To the extent that the employees' symptoms are not preventing the performance of the professional activity, work mechanisms may be implemented at home, and it is up to the company to create the necessary conditions for this effect.

 

What is the impact of this isolation on the employment contract? Do employees maintain the right to their remuneration?

If the isolation is not preventing the performance of the professional activity, it will be neutral from a labour point of view, and employees maintain the right to their remuneration. As for the remaining benefits, namely those associated with the usual dislocation to the company premises, a case-by-case analysis should be made in order to verify whether or not the assumptions, on which their payment depends, continue to occur in the state of isolation.

 

What social benefits can employees have access to?

The Decree approving the implementing of administrative measures for the prevention of COVID-19 does not establish any exceptional measure to safeguard the social protection of employees who are temporarily prevented from exercising their professional activity by order of the health authorities.

However, it will always be necessary to consider that if the employee falls ill while carrying out his duties, the Social Security protection shall apply and in that case the employee will be entitled to sickness benefit and hospitalization allowance, as provided for in the social security regulation. In the event of death, the death allowance, funeral allowance and survivor's pension will be paid.

 

Can the employee in isolation continue to work remotely? If so, what should I guarantee?

Assuming that the isolation does not result from a situation of incapacity, the employee may continue to work remotely, and the company must ensure that the necessary conditions are met in the specific case. Desirably, the remote work should have the agreement of the employee and any refusals should be managed by the company on a case-by-case basis in order to safeguard both the continuity of the production process and the legal guarantees that the employee is entitled to.

 

In the case of employees with scheduled vacation, what to do? Can I change the vacation map? Can I close the company so employees may enjoy their vacation?

Changes to previously scheduled vacation should, preferably, be made with the agreement of the employees. If an agreement is not reached, the possibilities for the company to reschedule the holidays are strongly limited. However, for imperative reasons linked to the company, the satisfaction of essential and unavoidable needs or the interests of the national economy, the company may postpone the total or partial enjoyment of holidays by the employees, until the holiday period of the following year, provided that certain communication duties established by law have been met.

 

What measures can the company take to maintain the job positions and mitigate corporate crisis?

Under the prevention and control measures of COVID-19, apart from the prohibition to terminate labour relationships based on the absence of the employees from the workplace, the Government did not adopt any other exceptional measure, with a view to maintaining job positions and mitigating corporate crisis situations.

In any case, in order to mitigate the impacts of the corporate crisis resulting from the current situation, companies may consider adopting some of the readjustment mechanisms foreseen in the Labour Law, such as (i) suspension of employment contracts, (ii) setting of a part-time work schedule, or (iii) implementation of model or variable working hours.

Under the law, the employer may unilaterally suspend employment contracts grounded in economic reasons, resulting, but not limited to, market reasons, disasters or other occurrences that have or are, predictably, affecting the normal activity of the company, provided that certain prior reporting obligations laid down in the law have been fulfilled. In this case, the employer is obliged to pay employees only a percentage of their monthly remuneration and only during the first three months of suspension. In addition, the law also allows employers to implement modelled working hours, in which daily and weekly limits are calculated in average terms, by reference to a certain period of time, meaning that, during a period of crisis, the employer can reduce the daily and weekly workload, so as to enforce a more demanding daily and weekly workload (above the normal work limits established by law) of recovery of activity in the post-crisis period, without being obliged to pay, therefore, overtime.

 

 

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This information is being updated on a regular basis.

All information contained herein and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.