Following the declaration of a pandemic for COVID-19 by the World Health Organization (WHO) [1] on March 11, and in accordance with the yellow alert decreed by the Executive Branch, the Government of Costa Rica has intensified protection measures after a significant increase in confirmed cases of the disease in recent days. Among these is Directive No. 073-S-MTSS, addressed to the Public Administration, which instructs all public institutions to temporarily and, as far as possible, implement teleworking for the entire workweek, and invites the private sector to apply the same measure.
Also, Executive Decree No. 42221-S ordered the suspension of activities with mass concentrations of people, such as concerts, public shows, fairgrounds, bullfighting and equestrian activities, competitive and recreational sporting events, activities held at the National Theatre of Costa Rica and the Melico Salazar Popular Theatre, or other similar events as defined by the health authority.
The Ministry of Labor and Social Security (MTSS) issued a criterion on the Labor Implications of the Arrival of the COVID-19 Coronavirus in the Country and Possible Solutions, in order to guide companies and private sector workers on the implications of the disease in the workplace and the possible applicable legal solutions.
Likewise, the MTSS published a document called “Guidelines for implementing teleworking on the occasion of the health alert for COVID-19,” in accordance with the Law to Regulate Teleworking, Law No. 9738 of September 18, 2019, and the Regulation to Regulate Teleworking, Executive Decree No. 42083 of December 20, 2019.
Below is a summary of important aspects to consider in the labor sphere with respect to the COVID-19 Coronavirus:
I. Possibility for Companies to Ask Employees to Take Medical Exams to Detect the COVID-19 Coronavirus
The comprehensive reform of the General Law on HIV/AIDS, Law No. 9797, of December 2019, repealed subsection f) of Article 71 of the Labor Code, which empowered companies to require their employees to undergo medical exams to determine if a worker suffered from a contagious professional disease, in order to take the necessary measures to prevent its spread at the workplace.
The said subsection indicated the worker’s obligation to: “Undergo a medical examination, either upon requesting entry to work or during it at the request of the employer, to verify that they do not suffer from any permanent disability or any professional, contagious or incurable disease; or at the request of an official body of Public Health or Social Security, for any reason.”
However, taking into account the fundamental rights to life and health, enshrined in our Political Constitution and superior in hierarchy to the law, it is feasible for companies to ask their employees to undergo such medical exams, either before or after the start of the employment relationship, based on Article 71 subsection h) of the Labor Code, which states that it is the workers’ obligation to “Rigorously observe the preventive measures agreed upon by the competent authorities and those indicated by the employers, for their personal safety and protection or that of their co-workers, or of the places where they work.”
It is important to highlight that the purpose of the medical exams is solely to take the necessary measures to prevent the spread of the disease at the workplace. Under no circumstances may the employer withdraw the job offer or fire the person in case of a positive result, as this constitutes a discriminatory act, according to the provisions of Articles 404, 406, and 408 of the Labor Code.
Companies that perform medical exams must do so by assuming the associated economic cost and, in case of a positive result, refer the worker to Social Security so that they can receive the appropriate treatment and also receive the compensation that the Costa Rican Social Security Fund (C.C.S.S.) announced it will be providing [2].
II. Suspension of Employment Contracts or Vacations
The MTSS criterion, “Labor Implications of the Arrival of the COVID-19 Coronavirus in the Country and Possible Solutions,” points out that the purpose of the suspension of the employment contract is to preserve the life of the relationships, suspending the production of their effects, without responsibility for the worker and the employer, when some circumstance, other than their work, occurs.
Article 74 of the Labor Code indicates the causes for the temporary suspension of employment contracts, without responsibility for the employer or for the workers:
- The lack of raw material to carry out the work, provided it is not attributable to the employer.
- Force majeure or a fortuitous event, when it has as a necessary, immediate, and direct consequence the suspension of work.
- The death or incapacity of the employer, when it has as a necessary, immediate, and direct consequence the suspension of work.
In the first two cases, the Executive Branch may issue emergency measures that, without harming employer interests, result in the relief of the economic situation of the workers.
The procedure to follow for the temporary suspension of the employment contract is indicated in Article 75 of the Labor Code and states that the verification of the cause on which said suspension is based, in which the employer has the burden of proof, must be initiated before the General Labor Inspectorate. This authority may determine whether or not the alleged cause exists and if the suspension is justified. In the opposite case, the workers may exercise their power to terminate their contracts, with responsibility for the employer. In any case, the temporary suspension of the contract implies the non-payment of salary, which can generate a significant impact on workers and the livelihood of their families. It can also lead to the paralysis of the company’s work and economic activity, which could represent economic losses for it.
Another possible solution mentioned by the MTSS criterion is to grant the worker vacations, in the case that they meet the requirement to acquire this right, which is having completed fifty weeks of continuous work in the service of the same employer, in accordance with Article 153 of the Labor Code. Article 155 states that it is the employer who can determine the time when the worker will enjoy their vacations, and must do so within fifteen weeks after the day on which the fifty weeks of continuous service are completed.
This measure would constitute an advance of vacations and requires the acceptance of all workers. In the event that an employment relationship ends before the fifty weeks, the employer could not charge the worker for those advanced vacations, as they were granted in good faith and for the benefit of the company itself.
Granting vacations is a viable option as an alternative to the temporary suspension of the employment contract. However, the minimum is two weeks for every fifty weeks of continuous work in the service of the same employer, so it is not feasible in all cases because the right has not been met. It requires the acceptance of all workers, and it is also unknown for how long temporary measures will be applied to prevent the spread of the disease, so even the two weeks could be insufficient.
III. Guidelines for the Implementation of Teleworking in the Private Sector
The most common and feasible measure that companies have been implementing is Teleworking, which is a modality in which work is performed outside the employer’s facilities, using information and communication technologies without affecting the normal performance of other positions, processes, and services provided.
This modality is subject to the principles of opportunity and convenience, is voluntary for both the worker and the employer, and requires being governed by an agreement between the parties, either through a contract at the beginning of the employment relationship or an addendum to the existing employment contract.
The company must define which positions can be developed in teleworking and what the requirements are for workers who will carry out their work in this modality, both in terms of labor and the environment in which they will perform their work, that is, the conditions of their home, such as digital technologies and infrastructure, adequacy of the physical space to be used, ergonomic conditions, etc.
It is important to point out that, during the execution of the Teleworking modality, the company maintains its power of direction, as well as the possibility of establishing mechanisms of legal subordination, monitoring, and control of the work performed by the employee during the Teleworking day, according to the different mechanisms in force in this or any other that is considered convenient, and in accordance with the legal limits of this power. In this regard, it is the employee’s obligation to follow and respect all the company’s internal policies and regulations during the execution of the Teleworking modality, just as if they were working at the company’s facilities.
Teleworking modifies only and exclusively the organization and the way in which the work is carried out. It does not affect the conditions of the employment relationship of the teleworker, who maintains the same benefits and obligations as those who perform comparable functions in the employer’s physical facilities. No agreement signed for teleworking may contravene what is stipulated in the Labor Code regarding the workday.
The worker’s obligations remain the same as those in Article 71 of the Labor Code and the prohibitions described in Article 72 of the Labor Code. The teleworker also has the obligation to comply with the measurement, evaluation, and control criteria determined in the teleworking contract or addendum, as well as to be subject to the company’s policies and codes regarding labor relations, behavior, confidentiality, information management, etc. They must comply with the established schedule, their workday, and be available to the employer during that schedule. Not being available to the employer during that schedule and workday will be considered as job abandonment, in accordance with the Law to regulate Teleworking.
The Ministry of Labor and Social Security established the Guidelines for implementing teleworking for the public sector, as a temporary measure as part of the preventive and mitigation actions dictated by the Ministry of Health in the face of the COVID-19 alert, which can be applied in the private sector. These guidelines state:
- The official must request authorization from their immediate supervisor to access the teleworking modality, and the supervisor must verify that the position performed by the person is teleworkable. They must also establish the days on which the person will work under this modality.
- What is established by Directive No. 073-S-MTSS must be abided by, which indicates that, as far as possible, teleworking should be applied for the entire workweek, unless the position requires the worker’s presence. Additionally, the temporary teleworking contract must be signed, which establishes the conditions under which the work will be carried out in this modality. The temporary measure will be in force until determined by the Executive Branch.
IV. Medical Incapacities due to COVID-19 Coronavirus
The Costa Rican Social Security Fund (C.C.S.S.), through a Board of Directors agreement on March 11 in an extraordinary session, agreed to modify the regulations that govern the granting of licenses and incapacities for active insured individuals (salaried and independent workers), so that this benefit can be granted to asymptomatic contacts who have a sanitary order for home isolation indicated by the Ministry of Health, in relation to COVID-19. Previously, an active insured with a sanitary order but without symptoms could not be a beneficiary of a disability subsidy.
It was agreed to add Article 10 bis to the Regulation of the Health Insurance of the Costa Rican Social Security Fund, to include incapacity due to a health alert for COVID-19 Coronavirus as an exceptional and temporary rule, in the following terms:
“Article 10 bis. – Incapacity due to health alert for coronavirus “COVID-19:” a. The concept of incapacity referred to in this article includes those cases that are under investigation or probable, that the insured may suffer from the disease “COVID-19” for the granting of incapacity, by the treating health team, and the following special provisions must be followed: a.1. It is an incapacity of an exceptional and temporary nature, whose maximum term will be established in the sanitary order. a.2. It will be based on the sanitary alert for home isolation issued by the competent authority of the Ministry of Health. b. For the purposes of granting the incapacity, the sanitary order may be presented by the insured, relatives, interested person, or by officials of the Ministry of Health, for the incapacity to be issued by the Treating Physician of the Fund in an expedited manner. c. The payment of this incapacity is subject to the requirements and conditions established in the Health Regulation. For cases already declared, its application will be retroactive from the issuance of the sanitary order. This measure will be carried out for a reasonable period as long as the health emergency persists in the country.
Article 2 of the Regulation for the Granting of Incapacities and Licenses to Beneficiaries of Health Insurance was also modified to read as follows:
“Article 2. Definitions. “… in no case shall incapacity be granted to a healthy person, even if it were to care for a sick patient, except in cases where Article 10 bis of the Health Insurance Regulation remains in force.”
The modifications approved by the CCSS Board of Directors are temporary and exceptional, so the institution may make the adjustments it deems necessary when required.
V. Coverage of Work Risk Insurance in Cases of COVID-19 Coronavirus
In accordance with Article 193 of the Labor Code, every employer, whether a public or private legal person, is obligated to insure their workers against work risks, through the National Insurance Institute. The employer’s responsibility subsists even in the event that the worker is under the direction of intermediaries, whom the employer uses for the execution or realization of the work.
Article 195 of the Labor Code defines Work Risks as accidents and illnesses that occur to workers on the occasion of or as a consequence of the work they perform in a subordinate and remunerated manner, as well as the aggravation or re-aggravation that results as a direct, immediate, or unquestionable consequence of these accidents or illnesses.
Article 197 of the Labor Code states that a Work Illness is any pathological state that results from the continued action of a cause, which has its origin or motive in the work itself or in the environment and conditions in which the worker works, and it must be established that these have been the cause of the illness.
According to Article 207 of the Labor Code, Work Risk Insurance becomes effective from the payment of the provisional or definitive premium that is set and extends until the day the insurance expires.
Article 213 of the Labor Code, on the Territorial Coverage of Work Risk Insurance, states that the insurance covers work risks that occur within the national territory, which also includes the natural or geographical, the territorial sea, the airspace that covers them, and the continental shelf. However, the National Insurance Institute will extend coverage outside the country, when it concerns companies or activities that, due to their nature, must be carried out, occasionally or permanently, outside the geographical scope of the Republic.
According to the Technical Regulations applicable to Work Risk Insurance of the National Insurance Institute, Article 3.7 on Extraterritoriality Coverage, Extraterritoriality is the coverage that is granted to the workers of the insured company who perform functions inherent to their position in other countries, in accordance with Article 213 of the Labor Code. This coverage is granted at no additional cost, and it will not be necessary to submit any prior report to the trip. However, it is conditioned on the fact that, in case of an accident of one of the employees who is outside the country, the information regarding the following must be expanded in the accident notice: a) The objective of the trip, the country of destination, and the period in which the trip was made. b) If required, the Institute may request additional information with the aim of complying with the provisions of Article 214, Subsection c) of the Labor Code.
In case of an accident outside the country, the insurance will work by reimbursement, that is, the Institute will recognize whoever has made the payment of those sums in the terms indicated below: a) The maximum amounts to be recognized will be those stipulated in the respective cost table, which for that purpose is administered by the Cost unit of the INS -HEALTH Sub-directorate of the National Insurance Institute. b) If the Medical Department of the National Insurance Institute considers the accident to be a “medical emergency,” the total cost of the invoices will be paid. c) The amount to be recognized will be the equivalent of the exchange rate of the Central Bank of Costa Rica on the day specified in the invoice. d) Only the payment of medical services that are directly related to the care of the injury resulting from the accident will be recognized.
For the reimbursement process, the following requirements must be met: i. A letter requesting the recognition of invoices. ii. A medical report or opinion, issued by the health center where the medical attention was received. iii. Invoices identified as paid. iv. Present everything in original and two sets of copies.
The economic benefits that will be covered will be based on what is established in Title IV of the Labor Code and what is defined in this Regulation.
The National Insurance Institute indicated on March 11 that, due to the national alert for the COVID-19 Coronavirus and the declaration of a pandemic by the World Health Organization (WHO), in the event of a reasonable suspicion that a worker was infected with this virus, due to or as a consequence of their work, the employer may immediately send the Notice of Work Accident and Illness by notification in the RT Virtual system and, in exceptional cases, may send the form to the Health Centers of the INS Health Services Network, for the respective valuation as to its eventual coverage as a work risk. It should be noted that work risk insurance would cover in case of a pandemic or epidemic, in compliance with what is established in the Labor Code. The measures will be maintained until there are changes in the epidemiological situation or in the national guidelines for the surveillance of the COVID-19 infection.
Any queries can be directed to the email aea@aguilarcastillolove.com with a copy to glr@aguilarcastillolove.com or by phone at 2201-8339.
- https://www.who.int/es/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020
- https://www.ccss.sa.cr/noticias/servicios_noticia?ccss-otorgara-incapacidades-por-aislamiento-domiciliar-ante-covid-19