Now, regarding what can or cannot be done according to the different workplaces and the contingencies associated with each of them, take in consideration the following:
8.1 Administrative staff who provide services in offices
The personnel who carry out tasks in facilities like offices can provide their services remotely, through the teleworking modality. This form of work would have a preliminary duration to be determined by the employer, a term that will be renewed according to the state of contagion of the disease at the national level, which is determined day by day.
By virtue of the foregoing, the employment relationship of these employees is not altered, since the provision of services continues to be carried out on a regular basis, there being no reason for the employer not to pay the corresponding remuneration.
8.2 Personnel whose functions cannot be carried out by telework
To date, the health authority has not established a mandatory quarantine for all Chilean territory, except in seven communes in the Metropolitan Region and three communes in other Chilean regions, so that employees must continue to provide services in those companies that are not in said communes under the security measures that have been imposed (e.g. alcohol gel available at points of sale, avoiding contact with a distance of one metre, among others).
One way to reduce the risk of contagion is to decrease the allocation of staff or modify their hours of entry to and exit from the work site each day, always avoiding incurring non-compliance that could lead to fines or an attack on the operational continuity of the business.
In regard to these employees, and especially those who are part of the risk groups, the following alternatives emerge:
- HOLIDAY: It can be agreed with the employees to make use of their legal vacations; however, this is a decision of the employee (it cannot be imposed by the employer), being the only way for the employer to force the use of holidays is through the "collective holiday" (review answer 6).
- LEAVES: The Company may reach agreements to suspend the provision of services, by entering into permission agreements with or without remuneration.
There is no legal obligation regarding the payment of remuneration with those employees with whom an agreement has been reached, since the remuneration is granted by the employer only in case of the effective rendering of services by the employee. However, if the employer and the employee have agreed in the employment contract to pay monthly advances of the profit sharing, they will continue to be obliged to pay the said amount even if the employment relationship is suspended, since in that case the employer was simply advancing a payment to be made in the future.
The following should be taken into consideration in case of eventual closure or a request for quarantine:
- If the closure is determined by an act of authority.
The Labour Board in their ruling N°1239/005 dated 19 March 2020 has indicated that when the Health Authority decides as a sanitary measure the close of the companies, it can be classified as force majeure for labour effects. However, this qualification must be determined on a case-by-case basis, being the courts of justice who must resolve the controversies associated with the said qualification.
Being considered force majeure, the parties to the employment relationship are released from their reciprocal obligations, which means they are prevented from granting the agreed job, suspending the employment relationship, and in the absence of an effective service provision, they are not obliged to the payment of remuneration. Later once normality is returned and the services for which they were hired can be rendered again, they can resume the labour relationship.
The Labor Board has indicated that the force majeure qualification of this crisis does not necessarily mean that the termination cause of article 159 No. 6 of the Labour Code (force majeure) is validly applicable. Thus, for the valid application of the cause of termination of the employment contract in question, the fact of closing a company by an act of authority is essentially transitory, so it would not be an irresistible fact that indefinitely prevents the return of the employee's services.
- If the closure is determined by the client or the employer.
Now, if the closure is due to an exclusive decision of the employer, it is a commercial decision, which cannot have an impact on existing labour relations, since our Labour Courts have indicated that responsibility for commercial decisions cannot be transferred to employees.
Regarding this case, our recommendation is that employers pay their employees at least a base salary and the variable bonuses that correspond monthly without discounting the days when closed by the principal.
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