Labor measures of the Peruvian government against the coronavirus pandemic

1. Background

After the World Health Organization classified the outbreak of Coronavirus (COVID-19) as a pandemic on Wednesday March 11, 2020, having spread in more than one hundred countries of the world simultaneously, the Peruvian Government declared in that same date the state of Sanitary Emergency at the national level, for a period of ninety (90) calendar days, restricting the entry of people from China, Italy, France and Spain and providing that the Ministry of Health, the National Police and various other authorities and public institutions adopt the necessary sanitary measures to prevent the spread of the virus.

On March 15th, 2020, the Peruvian Government ordered that public and private employers should grant paid leave to their staff or modify the place of provision of their services so that they perform it at their home or place of home isolation, using any means to carry out their tasks outside the workplace, thus implementing remote work.

2. Remote work & License

Remote work is not applicable to workers confirmed with COVID-19, nor to those who are on medical leave, who must be on paid leave.

In the same legal provision, the employer is prohibited from affecting the nature of the worker`s employment relationship, his remuneration and economic conditions, except those that are related to attendance at the workplace or if the worker is favored. The employer must inform the worker about the measures and conditions of safety and health at work that must be observed during the development of remote work, also communicating, if applicable, the employer's decision to change the place of service provision to implement remote work. It is also established that the worker must be available, during the workday, for the necessary labor coordination.

Regarding the computer equipment or of any nature that the worker requires to provide their services, it is established that they can be provided by either the employer or the worker.

Subsequently, the Ministry of Labor published a Guide for the application of remote work to inform and guide workers and employers regarding the provisions applicable to this type of work. Among the most relevant aspects of the Guide are the following:

• The employer must, among other things, communicate the worker the change in the place of provision of services to remote work and assign the tasks, establishing the supervision and reporting mechanisms during the working day, informing him also about the measures, conditions and recommendations on safety and health at work. The employer must provide training, if applicable, for access to computer systems, platforms or applications that will be used and inform the worker on the rules of confidentiality and protection of personal data applicable to the performance of his tasks.
• Computer, telecommunications or similar equipment and media (such as the internet and telephony) may be provided by the employer or the worker. In case the worker incurs additional expenses derived from the means and equipment for the development of remote work, the employer may agree a compensation with respect of it.
• The parties can agree that the worker freely distributes his workday, considering that he cannot exceed the maximum of six (6) days a week.
• Remote work is not applicable to workers with the Covid-19 or to those on medical leave. In the latter case, once the medical leave is over, the worker can perform remote work.
• The regulations on remote work will be supervised by the labor authority, the National Superintendence of Labor Inspection – SUNAFIL.

On the other hand, the Government stated that the employer must identify the workers who can be considered risky, both by age and by clinical factors established by the Ministry of Health to apply remote work as appropriate, unless the nature of the work is not feasible, in which case the employer must grant them a license with the benefit of having subsequent compensation with additional hours of work.

The compensation of the licenses will be carried out in the manner agreed by the parties. The parties may agree to impute the period to vacations, to the payment of overtime already worked or any modality that the parties may convey. In the absence of agreement, the worker must recover the hours left from working, once the State of Emergency ends.

3. Working Schedule

The Government has established that the employer is authorized to unilaterally modify the work shifts and schedules of its personnel, without affecting their right to the mandatory weekly rest, exempting them from certain legal formalities in force.