Covid-19 business criminal law and other issues in Peru

Peruvian authorities have issued a series of mandatory measures in the framework of the State of National Emergency in order to contain the spread of COVID-19, which was established by Supreme Decree No. 044-2020-PCM (“the Decree”). Non-compliance of these measures can lead to the prosecution of crimes contemplated in the Peruvian Criminal Code.

However, violation of these measures does not entail direct and independent criminal liability for companies (direct and independent criminal liability for companies can only arise in respect of crimes outlined in Law No. 30424, namely certain types of public corruption, money laundering and financing of terrorism). Criminal liability that applies for businesses from the breach of the Decree is going to be consequent or subject to the liability of the employee and/or representative.

Under the Decree employees and certain company representatives can be subject to prosecution for crimes related to the health, safety and labour measures that have been appointed by the authorities within the State of National Emergency framework.
Once criminal proceedings are in place, companies who received a benefit as a result of these offences may be included as civil third parties in order to pay the civil compensation that will ultimately be determined by the judge (as joint debtor alongside the defendant). It is likely that the sentence will also contain accessory consequences against the company, namely administrative sanctions that range from a fine to the dissolution of the company.
Offences contained in the health and safety laws and regulations, among others, state that all companies are prohibited from carrying out operations in-person unless their businesses offer essential services as determined by the authorities in the Decree. Companies that offer essential services (and therefore continue to carry out their operations in-person), must comply with specific health and safety regulations regarding the health of their employees and business partners to prevent the spread of the virus.

Criminal charges that may be held against employees, company representatives and the company itself refer to the commission of the crime of spreading dangerous or contagious diseases, violation of health measures, violation of occupational safety and health conditions; violation of privacy, generic falsehood, false declaration in administrative procedure and resisting or disobeying an authority.

Representatives of the company may also be personally liable if it is determined that their roles or responsibilities have been disregarded and, in that sense, they may have consented to the criminal act or been negligent in relation to the prevention of the offence. 

Businesses are not allowed to operate if they do not render essential services and employees should carry out their work in a remote manner. A breach of this prohibition could lead to prosecution for violation of sanitary measures and, furthermore, for spreading a dangerous or contagious disease, if that is the case, with the aggravating factor of the risk materializing into a health injury or even death. These crimes could be attributed to a representative of the company if it is determined that it was a part of their roles and responsibilities to take precautionary measures.

Companies that are enabled to carry out essential economic activities must also follow a series of provisions and guidelines regarding occupational health and safety measures. Where these provisions are not complied with, representatives can be held liable for the crime of violation of occupational safety and health conditions and can be directly charged for exposing employees to risk, whether this risk in fact materialized in an injury or not.

According to the degree of severity, the Peruvian Criminal Code sanctions may include imprisonment for both the employee as well as the representative, directors and officers of the company. The sanctions vary depending on the offence committed: 

• spreading dangerous or contagious diseases, from 3 to 20 years; 
• violation of health measures, from 6 months to 3 years; 
• violation of occupational safety and health conditions, from 1 to 8 years; 
• violation of privacy, from 1 to 4 years; 
• generic falsehood, from 2 to 4 years; 
• false declaration in administrative procedure, from 1 to 4 years; and 
• resistance or disobedience to authority, from 3 to 6 years.

The sentence will contain an order for both the employee and the representative to compensate the damage caused through an amount that will be determined by the court. There is no limit for the amount and it will be subject to the harm that was caused as well as culpability of the individuals and the criteria of the judge.

If a benefit was received for the materialisation of these offences, the company will be tried as a civil third party and held responsible for paying the civil compensation that will be determined, alongside the employee and/or the representative. If the company has benefited economically from the commission of the crime, this benefit may be confiscated in order to pay civil liability compensation. Along with the civil liability compensation the judge could determine accessory consequences as described before.

We are not aware of current prosecutions or convictions held against representatives or senior officers or directors of companies from crimes related to the regulations.

However, it is of public knowledge that a number of companies have failed to comply with these regulations and have had employees doing in-work activities which have not been essential. Furthermore, employees have been found carrying out these activities without any PPE. Both employees as well as the company’s representatives are under investigation. The essential nature of their business will be determined by a judge, as well as applicable sanctions on the company for not implementing health and safety measures.

The Ministry of Health issued the "Guidelines for the Vigilance, Prevention and Control of the Health of Workers at Risk of Exposure to COVID-19" (hereinafter, "Guidelines"), applicable to companies that operate during the State of National Emergency due to the essential activities they perform and companies that will return to operate in a subsequent and progressive manner.

Compliance with these Guidelines is monitored by each company's Occupational Safety and Health Committee. This Committee must develop a plan to ensure compliance with the Guidelines. The corresponding state entities will have access to this plan, in order to monitor compliance with it. 

The Guidelines focus on the daily cleaning and disinfection of workplaces before the start of the workday, mandatory hand washing and disinfection, body temperature control at the entrance of the worksite, use of masks and respiratory protectors, adequate social distance (at least 1 meter between each worker), awareness activities to prevent infection in the worksite and health monitoring of workers.

The Ministry of Health also grants other ministries and local as well as regional governments the faculty to approve the provisions they consider appropriate.

Failure to comply with the Guidelines does not immediately qualify as a criminal offence. However, if a health and safety risk is verified both representatives and the company could be tried for the criminal offences mentioned above.

There are several different types of scenarios and civil claims that could arise from COVID-19 regulations. We set out a few of these below, although many more could arise in practice (both in terms of businesses currently providing essential services and businesses that are currently closed but will eventually re-open). 

Businesses that have not reacted promptly in order to implement measures to comply with the extensive amount of legislation that is being passed, could face claims from employees, or from the public, if the company has carried on with its normal course of operations and disregarded the sanitary measures placed by the legislation - therefore placing employees in a high risk situation. Some of the claims that could arise are:

• Employees or members of the public relating to working conditions without following the sanitary guidelines - these claims could state that the company has not taken preventive measures to periodically do COVID-19 testing on its staff, that no PPE has been provided, that no sanitary implements have been placed in the workplace; that there is no training being carried out and that the company has not implemented social distancing measures within the workplace, among others.
• If from these situations, a staff member becomes infected with the virus or if from the infection, damages could occur to the health of the employee, claims could be placed against the company as well.

However, in any case, to determine civil liability against the company certain criteria have to be proven:

• that damage against a legally protected interest was caused; 
• causal link;
• unlawfulness; 
• attributing the guilty conduct to the agent who caused the damage; and 
• the capacity of agent in order to compensate the damages. 

As many of these breaches would represent failure to comply with common interests, employees could certainly be subject to collective proceedings. The treatment of these claims would correspond to the labor jurisdiction, not to the civil or commercial courts.