On March 15, 2020, the National Executive informed of 17 cases of infections with Coronavirus COVID-19 in Venezuela. In order to prevent massive contagion, it declared Social Preventive Quarantine for 7 states: Caracas, Miranda, La Guaira, Apure, Zulia, Cojedes and Táchira; clarifying that, “this is not collective holidays”. It indicated that all work activities are suspended until further notice, except those related to health, services and food areas (the Exempted Areas). In view of said statement and the concerns that may arise in the labor sector, we have taken the initiative to prepare this frequent questions and answers, to clarify certain general doubts during this situation of National Alarm.
1. What is an occupational disease?
According to article 70 of the Law for Prevention, Conditions and Work Environment (LOPCYMAT for its acronym in Spanish):
“Occupational disease is understood as the pathological state contracted or aggravated on occasion of work, or exposure to the environment in which the worker is obligated to work in, such as those attributable to the action of physical and mechanical agents, uncomfortableness, meteorological conditions, chemical and biological agents, psychosocial and emotional factors, which are manifested by an organic injury, enzymatic or biochemical disorders, functional disorders or mental imbalance, whether temporary or permanent. (…) “
Based on the above definition, we suggest taking the immediate appropriate measures in the workplace to prevent COVID-19 from becoming an occupational disease.
2. Does the employer/company have to inform its employees about the measures of protection against Coronavirus?
The employer is obligated to inform and implement protection measures for the employee, to prevent or minimize the risks of contagion and thus prevent it from becoming an occupational disease.
In case of violation by the employer of the legal regulations on Occupational Health and Safety, it could be subject to the payment of the compensation established in article 130 LOPCYMAT.
3. What measures should the employers in the Exempted Areas take?
Given that the Exempted Areas are health, food and services, these must immediately adopt preventive measures of collective or individual nature, depending on the activity carried out by each company. Among the general measures to be taken are:
•The Occupational Safety and Health Committee, through their Prevention Delegates, must carry out a daily monitoring of the situation in the workplace and of each employee/worker, and ensure that the workers properly use safety tools;
•Continuously inform workers through, inter alia, lectures and brochures how COVID-19 spreads and ways of prevention;
•Reduce the number of exposed people by establishing clear rules to reduce and avoid the frequency and the person-to-person contact;
•Establish specific measures for particularly sensitive people;
•Establish personal hygiene measures in all areas of work and against any scenario of exposure, e.g.: cleaning and sterilization every 2 hours at the workstations;
•Provide employees/workers the appropriate personal protective equipment;
•Determine the risk of exposure by service area (risk exposure, low risk exposure and low probability of exposure), and implement measures in this regard; and
•Try as much as possible to coordinate the transportation of workers by alternate means – private transport or carpool with coworkers to bring them closer to their homes – to prevent them from using public transportation.
4. Can the employer/company compel an employee/worker to continue providing services despite the quarantine?
If the employee works in the health, food and services areas, is not infected and does not present Coronavirus symptoms, it must attend the workplace. If the worker has symptoms or suspicion, it must immediately inform the employer and the Prevention Delegate so that corresponding measures are taken. If the worker does not work in the Excepted Areas, it must discuss with the employer the implementation of remote work measures.
5. Can companies subject to quarantine implement Teleworking?
Yes. Teleworking allows the employee to work in a different place than the office, where it will work the regular days and times, and continues to have the same obligations. It is important to clarify that workers are not on vacations or holidays, but these are alternate measures due to the contingency the country is undergoing. The employer must implement methods to control hours and remote work.
6. Does the employer have a duty to provide prevention material for employees who are working against the Coronavirus?
Yes. It is the employer’s obligation to guarantee the safety of its workers.
7. Can workers unilaterally stop their activities for fear of contagion from Coronavirus?
No. Workers must comply with hygiene and safety regulations to avoid infection, and in case of suspicion immediately notify their Prevention Delegate or the Human Resources department. These will take the appropriate measures in accordance to the established protocols for these cases.
8. In case of infection at work and death, could COVID-19 be considered occupational illness?
Yes, and in the event of death due to the virus, the employer must inform and render statement within 24 hours of the event to the National Institute of Prevention, Health and Safety at Work.
The liability of the employer will be compromised to the extent that it has taken all measures established in LOPCYMAT, and by other governmental entities.
9. Can the employer temporarily replace an employee who is in quarantine?
Yes. The replacement worker will be hired under a Fixed-Time Employment Contract, according to the provision in article 64 section (b) of the Labor Law.
Keep calm and above all enforce the rules established for the prevention of Coronavirus.
In case of enquiries or doubts, do not hesitate to contact our Labor Law specialist, Damirca Prieto at damirca.prieto@clydeco.com.ve.
Clyde & Co Caracas
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