Legal aspects of the Covid-19 crisis in Peru

The situation with COVID-19, the disease caused by the coronavirus, is still developing, but there are some key issues that employers should be aware of. Below you will find our guidelines for Peru with the following questions answered. Since the situation is rapidly evolving, check with us for the latest position.

1. Is the employer obliged to take on preventive measures in its operations regarding COVID-19?   

The Government has ordered mandatory isolation or quarantine and other measures in response to COVID-19. The health and labour ministries have made recommendations concerning social distancing and preventative labour measures in relation to this illness, and employers must comply with these measures. 

In principle, the national state of emergency requires compulsory social isolation or quarantine for all people with the sole exception of those who participate in the production and supply of food and pharmaceutical products, health services, and water, sanitation, electrical energy, gas, fuel, telecommunications, cleaning and collection of solid waste, funeral services and other similar activities, assistance and care for vulnerable people, as well as financial entities, insurance and pensions.

Employers in the activities mentioned above must take certain preventative measures to combat the spread of the disease among their workers, such as the following: 

  • Provide employees with detailed official information from the Ministry of Health on measures to prevent infection.
  • Prepare a health action plan in the workplace together with the Committee or Supervisor of Safety and Health at Work.
  • Provide information (either electronically or in printed form) on ways to prevent infection.
  • Provide hygiene materials and equipment to employees.
  • Display posters in the workplace promoting hand washing and covering your mouth and nose when coughing and sneezing, and the use of tissues and alcohol-based hand sanitiser.
  • Place hand sanitising liquid dispensers in key spots around the workplace and ensure that these dispensers are regularly refilled.
  • Make sure employees have access to areas where they can wash their hands with soap and water.
  • Train employees regarding i) prevention and control measures at work, ii) hygiene practices at work and iii) communication and information measures. 

2. Should employees inform the employer if they are sick?  

The employee must inform the employer if he has been infected with the coronavirus that causes COVID-19 or if he is having any symptoms or if he has come in contact with anyone who is infected with virus.

3. What should the employer do if an employee is infected with the virus or has symptoms?   

If an employee comes down with symptoms or if the employee is infected with the virus, the employee must be separated from the rest of the work force and sent home immediately. The employer must give the employee contact information for health authorities in charge of COVID-19 treatment. Furthermore, the company should communicate the case to authorities in order to be instructed whether the workplace should close or if any special safety measures should be adopted while the company continues to operate.       

4. Can employees wear face masks on the job site?  

The use of masks is only mandatory for public areas. However, employers have to provide their employees with hygiene materials and equipment as a preventative measure against COVID-19. The use of masks is considered a necessary control measure to minimise the risk of exposure to the virus.

5. Can the employer prohibit traveling to areas at risk?  

It should not be necessary to do so because to the compulsory isolation ordered by the Government.

6. Can employees cancel their vacations?  

If an employee was on vacation leave before the declaration of a national state of emergency, the employee is not required to cancel or interrupt his vacation leave unless otherwise agreed upon.  

After of the declaration mentioned above, for employees who do not participate in those essential activities that are excluded from isolation, the employer must organise remote work unless if feasible. The employer must grant each employee a license with the benefit of receiving subsequent compensation with additional hours of work.

7. Can employees refuse work travel to a high-risk area?

In principle, the employer should not require such travel because of the compulsory isolation ordered by the Government. However, employees excluded from isolation because they participate in essential activities may be obliged to continue with normal activities, which could include performing activities in high-risk areas.

8. What measures can be applied at this time regarding employment contracts?

The Government stated that the employer must identify those workers who are considered high risk, both according to age and clinical factors established by the Ministry of Health, and assign them to remote work if possible. If by the nature of an employee's duties remote work is not feasible, the employer must grant them a license with the benefit of receiving subsequent compensation with additional hours of work.

In addition, the employer must apply this license for all employees who cannot perform their work remotely due to the nature of their duties or for other unspecified reasons. 

The employer is entitled to enter into an agreement with the employee to receive the compensation of the licenses that the employer is legally obliged to grant. In the absence of an agreement, this compensation will last until the State of Emergency ends, and the parties may then agree to apply vacation time for overtime already worked or any other arrangement the parties agree upon. In the absence of an agreement, the worker must recover the hours that he was absent from work.

9. In case of illness or quarantine, would wages still have to be paid?

In this particular case in which the Government has obliged almost all employers to grant paid leave to their employees if remote work is not feasible, it is clear that during the quarantine every employee will receive his salary without going to his workplace or even without working.

In case of employee illness, the employer is obliged by law to pay a subsidy to employees. During the first 20 days of the illness, the Government created a specific subsidy for the victims of COVID-19. If employees are still ill after this emergency period, Social Security will pay for any treatment or the employee will receive a temporary disability subsidy. In both situations, the employer must pay the subsidies for later reimbursement by Social Security.

10. Can the employer send workers home?

Currently in Peru, employers are obliged to send workers home either to do remote work or on paid government-ordered leave. Only people performing legally defined essential activities are allowed to continue working at their workplaces.

11. What happens if a Company must close due to the coronavirus? 

If a company decides to suspend its activities and suspend the work of its personnel without payment of wages, it must notify the Ministry of Labour. If the Ministry considers the suspension of work unjustified, it can order the company to continue paying its staff compensation and labour benefits during the state of emergency due to receiving a special license with subsequent compensation. Currently, the Ministry of Labour has published no official statements reporting that it plans to authorise work suspensions. The only legal way a company could then stop operating would be through liquidation and dissolution.

12. Is the employer obliged to pay wages to workers who must stay at home to care for children?

No. However, this situation could be resolved by an agreement between the parties. 

13. Is there an obligation to pay wages to an employee who was infected through non-compliance with hygiene measures ordered by the employer?

In this case, the employee will obtain a medical leave due to his infection, and the employer must then pay him the respective subsidy. The employer must then apply for reimbursement for this subsidy from Social Security. 

14. Can the employee stay home for fear of becoming infected?

No. According to state of emergency laws, only high-risk workers are entitled to stay home. 

In any other situation where the employee stays home voluntarily, disciplinary sanctions, including dismissal, can be taken. 

15. Can the employer unilaterally order workers to stay home or work from home?

In the current circumstances, if the Government had not ordered a mandatory quarantine, an employer could order its employees to stop going to the workplace and to do remote work since this order is justified as long as it does not affect employee salaries or rights.

Portrait of Claudia Flecha
Claudia Flecha
Partner
Lima