As Latin America continues to manage the adverse economic effects resulting from the coronavirus (COVID-19) pandemic and prepares for what lies ahead, there are certain post-shutdown processes and regulatory requirements to keep in mind before the restart of operations in the region.
We provide you with an overview of the regulatory landscape to date in selected jurisdictions in the region (including Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Mexico, Panama, Peru, Puerto Rico, and Uruguay) concerning the restart of operations in a post-pandemic reality.
There is no mandatory safety protocol applicable for all employers throughout Argentina. There are, however, some approved and mandatory protocols per industry or activity and some approved mandatory protocols applicable to all employers in certain states.
For instance, the Province of Buenos Aires issued a mandatory protocol for all reopening companies, applicable to employees and all those other persons who attend the worksite, which includes the following:
Employers are suggested to have an auditable record of all the measures adopted in compliance with this protocol.
Regulatory requirements on reopening of nonessential activities are ongoing and may vary according to the municipality or state where each business is established. Also, some businesses may be subject to sectoral regulation and there may be union negotiations establishing specific conditions.
For instance, by means of Decree No. 64.994/2020, the government of the State of São Paulo created the São Paulo Plan, which provides requirements for the gradual reopening of activities in the state. According to such decree, each municipality shall evaluate its (1) epidemiological studies/investigations, (2) health system capacity, and (3) COVID-19 testing initiatives. Based on these aspects, each mayor may authorize the gradual resumption of nonessential services and activities, subject to minimum safety and hygiene requirements.
In the municipality of São Paulo, Decree No. 59.473/20 sets forth a procedure for activities to receive a prior authorization for the resumption of activities. It starts with the presentation of a proposal by entities representing the economic sectors to the Municipal Secretariat for Economic Development and Labor (SMDET). Upon receipt of the request, SMDET should analyze the admissibility of the proposal and present its manifestation, which shall be forwarded to the analysis of the Local Sanitary Authority (Local VISA).
Local VISA will analyze the health protocol, in its technical aspects, and present its manifestation (favorable, favorable with alterations, or unfavorable). A term of commitment with the proposing entities shall also be executed with the Civil House. Once the term of commitment has been published, the establishments related to the respective sector may resume attendance to the public and must comply with all the requirements established therein, as well as respecting the other conditions established by this decree and by the São Paulo Plan.
From a health regulatory perspective, companies should evaluate the following issues prior to returning to the workplace:
Companies in Chile must always maintain the required sanitary and environmental conditions in the workplace to protect the life and health of employees. Therefore, companies must comply with applicable regulations and, in particular, with the following:
All companies’ reopening activities must implement the applicable biosafety protocols according to the business performed. In addition, some cities have special regulations, such as Bogota, where a Safe Mobility Plan (PMS) must be implemented. The PMS and biosafety protocols must be registered before the mayor of Bogota. This registration, along with the biosafety protocols and the PMS, had to be fulfilled no later than by June 1, 2020 (Decree 126 and 129, 2020, issued by the mayor of Bogota).
The PMS must contain (1) the number of employees and contractors; (2) the schedules of staff shifts that require carrying out the work in person, setting out, for each shift, the number of people by position, function, and gender; (3) the origins and destinations of the personnel that require carrying out the work in person (if the company has several offices or sites, it must present the information for each office and site); and (4) the modes of transportation (e.g., shuttle buses/trams) to be used by the employees who need to carry out the work in person, indicating the total number of employees and contractors for each of the modes.
In addition, employers must report daily at this link and to telephone line 123 if some of the employees have related symptoms of COVID-19 such as fever, dry cough, shortness of breath, feeling of lack of air, or other. In the event that one of the employees has any of these symptoms, the company must not allow the employee to carry out his or her duties in person and allow him or her to remain at home for a period of not less than eight days.
It is important to note that in Bogota some industries have isolated work schedules and are obligated to work within the following schedule:
In any case, employers must avoid, to the extent possible, their employees using mass transportation, and promote alternative means of transport and/or working from home.
Unlike the rest of Latin America, Costa Rica has not shut down businesses during the COVID-19 pandemic, but only restricted hours of operations for establishments open to the public. The general guidelines for operation are posted on the Ministry of Health’s website.
All business shall promote and implement work from home measures as much as possible. Moreover, businesses shall have a protocol to handle any confirmed or suspected positive case of COVID-19, which shall include disinfection of the spaces where the individual was present during the days prior to the confirmed or suspected infection notice. Any individual with a confirmed or suspected positive case of COVID-19 shall be provided a mask and sent to a medical center for evaluation.
Official protocols issued by the Ministry of Health shall be visible in all public spaces. Restrooms shall have antibacterial soap or alcohol/alcohol gel of at least 70% concentration grade, and disposable paper towels. Companies shall have a cleaning protocol that specifies products to be used, frequency of use, personal protection equipment, and proper disposal management systems. A cleaning log shall be kept to procure compliance with the cleaning protocol.
Meetings shall be mainly in a virtual format, if possible. Congregation of individuals can only take place in spaces with ventilation, opting for natural ventilation when possible. If a space has air conditioning, the filters shall be cleaned according to the systems’ specifications. In case of congregations, individuals shall maintain a 1.8-meter distance between each other or function at 50% of maximum capacity, unless lower thresholds are determined by the Ministry of Health.
If the minimum distance cannot be met due to specific requirements (i.e., production lines), individuals shall have adequate personal protection equipment, especially masks. In-person meetings shall be as brief as possible, and in any case, they shall not exceed one hour. This time limit is not applicable to theaters or cinemas, where specific regulations apply. People shall not interact prior to in-person meetings.
Meeting spaces shall be cleaned between meetings with alcohol of 70% grade of concentration, disinfectant, or choline and disposable towels. Surfaces of frequent use (e.g., handrails, door knobs, shopping carts, shelves, elevators) shall be cleaned constantly with alcohol of 70% concentration, disinfectant, or choline and disposable towels.
Workplace cafeterias shall operate at 50% capacity and handwashing facilities shall be made available.
In cases of production workers, the staff shall be divided in groups to ensure that if there is a positive case, a backup team is available and production is not suspended. Areas should be disinfected between each shift. Visits should be limited as much as possible.
Individual workspaces should not be shared, not even in sequential turns, unless a rigorous disinfection procedure is applied between users. Work utensils or objects shall not be shared, unless a rigorous disinfection procedure is applied between users.
For establishments open to the public, a differentiated opening schedule shall be made available to the vulnerable population (i.e., elderly or individuals with chronic disease).
Generally, to reopen activities and perform in-person work, businesses must (1) create a multidisciplinary response committee to attend COVID-19 matters; (2) prepare and enforce formal internal protocol and guidelines regulating matters such as measures in the workplace, entry protocols including mandatory temperature checks, mandatory use of masks, use of common spaces, and social distancing (two meters), among others; and (3) have employees complete a health questionnaire to confirm health risk and status.
During the sanitary emergency, the workplace may only hold up to 50% of its capacity and commercial premises up to 30% of its capacity. We note however that certain variations may apply depending on the county.
On May 29, 2020, the Mexican government issued a decree by means of which specific technical guidelines for the reopening of economic activities were established (the Guidelines). The Guidelines are of general application for all work centers, and they have the main purpose of establishing the specific measures that the companies must implement for the reopening or continuation of operations.
In order for each work center to identify the mandatory measures applicable to the specific case, four dimensions must be considered: (1) the type of activities they provide (essential or nonessential), (2) the level of epidemiological risk in the municipality where the work center is located, (3) the size of the work center, and (4) its specific characteristics. Once the four previous dimensions have been identified, work centers must comply with the sanitary measures identified in the Guidelines:
At this stage, all companies will be able to restart operations as long as the epidemiological traffic light allows them and they have implemented the sanitary measures established in the Guidelines. It will not be necessary to have prior authorization, except in the case of companies engaged in essential activities, which must complete an online self-assessment.
Currently there are legal ordinances in place preventing some “nonessential” businesses from opening. Gradually, the Ministry of Health in Panama has issued resolutions authorizing the reopening of certain businesses (but not all). Businesses authorized to reopen have four months from the date the Ministry of Health issues that authorization to adhere to the following sanitary requirements:
As an example, note that some industries were allowed to reopen on June 1, 2020 and, therefore, have until October 1, 2020 to have the sanitary requirements described above in place.
The resumption of activities is conditioned to the compliance protocols issued by each industry, as well as the applicable health provisions. Regarding the latter, Ministerial Resolution No. 239-2020-MINSA sets out the general guidelines that must be followed in order to prevent the transmission and spread of COVID-19 in workplaces and for the reincorporation of employees. The main obligations are described below.
Before Activities Restart
During the Health Emergency
Finally, employees who are allowed to work must obtain individual labor passes to be able to transit.
Puerto Rico Executive Order (EO) 2020-38, as supplemented by EO 2020-41, deals with, among other things, the reopening of certain businesses in Puerto Rico and related operational requirements. New EOs will be issued as other businesses are allowed to reopen. The EOs provide the following precautionary measures applicable to business as they reopen:
The EOs provide that employers must have a contagion control plan in place and submit a certification concerning same. The Puerto Rico secretary of labor issued Opinion Letter (OL) 2020-03, which is intended to implement EO 2020-38, including more details on the requisite contagion control plan and a “self-certification” concerning such plan that must be submitted to the PR Department of Labor and Human Resources (PRDOL). Access the document of self-certification of compliance for each employer; both the certification and the plan are to be emailed to autocertificacionprosha@trabajo.pr.gov.
Businesses that were previously closed but now are allowed to reopen must submit the certification document before they restart operations. Once it is submitted, they can begin work. For a business that was previously deemed essential and allowed to operate, it should simply submit the certification document as soon as possible.
Per OL 2020-03, the certification must state that the business has enacted a contagion control plan that includes at least the following components:
By submitting the certification, the employer agrees to be included in the listing to be published by the PRDOL of businesses exempt from the shutdown that are allowed to operate. The PRDOL also issued a model contagion plan.
In Uruguay there was not a prohibition to continue working from offices. There was instead an exhortation that, if possible, companies should implement a work-from-home regime. Therefore, on-site work can be resumed at any time, taking into consideration that adequate measures should be implemented in order to prevent contagion.
Currently, back-to-the-office protocols, including preventive measures to be adopted, are being drafted in the frame of the Labor General Inspection by field of activity. Also, all companies must draft preventive action protocols at the level of the Bipartite Safety Commissions or of the Health and Safety Services, depending on the nature and specific features of each company.
The decision is set in the context of an employer’s obligation to safeguard health and safety in the work environment, which in practice means that companies should put in place, among others, the following preventive actions and good practices:
The Latin America team at Morgan Lewis has deep cultural and business ties with the region and a unique understanding of the challenges presented to our clients doing business there. We are uniquely positioned to timely and efficiently assist our clients during these challenging times. We provide counsel and the legal tools to get you through the COVID-19 pandemic and to help you transition to a new post-pandemic reality.
This LawFlash is for informational purposes only and does not constitute legal advice. Our team, together with our trusted network of local law firms, is ready to work with you and address your questions involving COVID-19 or any other matters you are facing while doing business in Latin America.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Houston
Humberto Padilla
John Crespo
Felipe Alice
New York
Tom Mellor
Melissa Rodriguez
Miami
Alison Tanchyk