COVID-19 Humanitarian Support Law | Dentons - JDSupra - JD Supra

The crisis caused by COVID-19 has significantly impacted the economy and labor market. In order to deal with this, the “Humanitarian Support Law” came into force on June 22nd 2020, which establishes tax and labor reforms. In relation to labor reforms, we have the following:

• Preservation agreements: Employers and employees by mutual agreement, could modify the economic conditions of their labor relationship, to preserve the sources of work and guarantee stability. They must follow some specific requirements provided in the law.
• Emerging reduction in working hours: The employer may reduce working hours, due to force majeure events duly justified. There are some conditions that must be met: reduction can be a maximum of 50%, remuneration must be proportional to the hours worked (reduction can be maximum 45%), the contribution to Social Security must be paid according to the reduced working hours, the employer must justify to the Ministry of Labor the reasons for the reduction and attach the payroll of the workers to whom this measure will be applied. Reduction can be applied for a period of one year, renewable for one additional year.
• Emerging special contract: A new type of contract is created. It determines a period of one year, which can be renewed for one additional year. This type of contract could be celebrated for new investments, business lines, products, or services; in case of extensions of the business, due to greater demand for production or services in the employer's activities, the contract may have a maximum working day of 8 hours per day and 40 hours per week that can be distributed over six days a week. In case of termination of the contract, the employee must receive the pending remuneration, proportional to the law and the bonus for eviction. There is no compensation for wrongful dismissal.
• Remote working: It consists of the provision of services using information and communication technologies as support, without the need for physical presence in a specific place. This modality can be agreed at the beginning or during the labor relationship. It can be permanent or partial. The employer must guarantee a disconnection time of at least 12 continuous hours, within a period of 24 hours, without attending to communications, orders, or other requirements, as well as mandatory rest days. The employer must provide equipment, work elements and supplies for the execution of remote activities.

Termination guidelines for Ecuador

Under Ecuadorian Law, the employer basically has two ways to terminate a labor relationship:

• One way to terminate an employment relationship is through an administrative process known as approval for dismissal (“visto bueno”). Both the employer and employee may start the process with a Labor Inspector.
  • Reasons for initiation of approval for dismissal by the Employer: lack of integrity, breach of regulations, negligence, forged documents, repeated and unjustified lack of punctuality or attendance at work, or absence for a period of more than 3 consecutive days, for insults to the employer and breaches of health and safety provisions.
  • Reasons for initiation of approval for dismissal by the Employee: serious or discriminatory insult by the employer; reduction, non-payment or late payment of remuneration; change of position.
  • The process lasts approximately 30 days, during this time the Labor Inspector investigates the basis of the reasons on which the process is based. While the process is underway, the employer may ask to suspend the employment relationship, in which case it must pay a sum equivalent to one remuneration.
  • Once the formalities of the investigation are complete and all information has been submitted, the Labor Inspector will decide whether to grant the approval or not. The Inspector´s decision can be appealed before the Labor Judge.
  • If the request for approval filed by the employer is denied, the employee will re-join the workplace and will receive the sum allocated by the employer at the beginning of the process.
  • On the other hand, if the request for approval is accepted, it will not generate any compensation. The employee will only receive the payments to which he is entitled to by law up to the date of termination.

• The second way to terminate an employment relationship is when the termination is a unilateral decision of the employer (wrongful dismissal) without just cause, it does not require any formality or justification other than the payment of the relevant severance.
  • Laid-off employees are entitled to a severance pay in accordance with their service time for the company as defined in the Ecuadorian Labor Code.
  • Sudden dismissal of a person with a disability is compensated with an additional severance payment of 18 monthly salaries.
  • Discriminatory sudden dismissal is sanctioned with an additional severance payment of 12 monthly salaries.
  • The judge may declare ineffective the wrongful dismissal of:
    • Women that are pregnant or dismissed in the first year after giving birth.
    • Union leaders.
    • After the judge's decision, the employee can decide between reinstatement or an additional special severance payment of 12 monthly salaries.

Mandatory vaccination in Ecuador.-

The Ecuadorian government issued a vaccine mandate for all eligible residents, making Ecuador the most recent country to issue this strict measure against the COVID-19 pandemic. Exceptions to the far-reaching vaccine mandate will be made for people who cannot safely receive the vaccine. All other Ecuadorians ages five and above will be required to get the shot.

On January 22nd, Ecuador’s Special Operations Committee, which runs health policies to combat the pandemic, issued a resolution that included the guidelines that all citizens must follow in order to reduce the spread of covid-19. The resolution states that vaccination certificates must be shown in order to access places such as restaurants, cinemas and other public areas.

Labor considerations stated in the Resolution .-

According to the epidemiological risk traffic light, companies must have a limited capacity of employees as follows:

1. a maximum capacity of 75% for the cities that are in green;
2. a maximum capacity of 50% for the cities that are in yellow; and,
3. a maximum capacity of 30% for the cities that are in red

Guidelines for the progressive and safe return to face-to-face work activities must be followed. According to the guide, it is stated that "all immunized people will return to the face-to-face work modality, unless another modality is established by agreement of the parts". In other words, the possibility is left open so that certain positions can be carried out in the teleworking modality, as long as the activity is susceptible to it.

Companies have to maintain procedures that allow employees to work in a safe place, taking the necessary biosecurity measures such as: interpersonal distance of 2 meters, use of a mask during the working day, provision of hygiene products, maintaining spaces continuously sanitized, preferably hold meetings by videoconference, organize work entry times to avoid crowds.

In the event of a case of COVID-19, the company must have an internal mechanism to identify, isolate and notify cases of workers who show signs/symptoms, in order to prevent the spread of COVID-19.

In the Labor context, vaccination is NOT mandatory, the employer cannot compel the employee to get vaccinated. Health issues are treated with confidentiality. Vaccination certificates are required to access to public places, so if you don’t have it, you will be limited to do several activities.

The government has been skillful in "communicating" the obligation, but in labor relations it can not be compel. What remains is the mention Guide, which basically allows the employer to call their employees to face-to-face work, whether they are vaccinated or not, with the restrictions applicable to workers who are in a situation of special vulnerability or who oversee people with that condition.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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