Reopening Considerations for Latin America in the Time of COVID-19

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.

Argentina

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:

• General measures of prevention and detection
• Recommendations regarding the commute of employees to and from the workplace
• Procedures to enter the worksite
• Measures to be implemented in the worksite (personal distancing of at least 1 meter, frequent handwashing with soap and water, avoid physical contact or group meetings with co-workers, avoid sharing personal elements such as glasses or cups, provision of hand sanitizer, room ventilation, frequent cleaning of surfaces, and disinfection of objects or tools of frequent use, among others)

Employers are suggested to have an auditable record of all the measures adopted in compliance with this protocol.

Brazil

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:

• How to communicate with employees about the requirements and intended benefits of non-pharmacologic measures taken by the company, such as diagnostic testing, face coverings, respiratory hygiene and/or use of telethermographic cameras, and thermometers or similar screening devices.
• Specifications and limitations of each type of diagnostic test to be offered to employees (serological, molecular or antigen).
• Governmental authorizations required to administer tests or provide any kind of health care assistance on-site.
• COVID-19 mandatory notification requirements to health authorities and compliance with patient confidentiality regulations.
• Monitoring and contact tracing of employees exposed to the virus and implementing separate protocols for employees considered to be in a higher risk group.
• Offering remote assistance to employees and dependents by means of telehealth and telemedicine services.

Chile

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:

• Nationwide health alert
• Several resolutions of the Ministry of Health that have established sanitary measures to prevent the spread of COVID-19
• Recommendations for action in the workplace of the Ministry of Health
• Sanitary protocols for the operation of companies of the Ministry of Economy
• Sanitary protocols for cleaning and disinfecting issued by the Ministry of Health
• Instructions by the regional health authorities (Seremi de Salud)
• Instructions for transit permits in zones under quarantine by the Ministry of Interior and Public Security and the Ministry of National Defense
• Safe-passage permits and authorizations to move through a specific area once curfew has been established
• Resolutions by the Ministry of Finance that indicate areas or territories affected by an act or declaration of authority and the activities or establishments exempted from the stoppage of activities, in order to access the benefits referred to in Articles 1 and 2 of Law No. 21,227

Colombia

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:

• Construction companies: between 10:00 am and 7:00 pm
• Marketing of nonessential products and services: between 12:00 pm and 11:59 pm
• Manufacturing and supply companies: must establish work schedules between 10:00 am and 5:00 am

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.

Costa Rica

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).

Ecuador

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.

Mexico

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:

• Type of activity: Work centers must identify whether the activity they provide is considered essential or nonessential in accordance with the provisions of the Mexican government.
• Level of epidemiological risk: Work centers must identify the level of risk established for the municipality in which they are located, in accordance with the Health Alert System. The Health Alert System consists of a regionally applicable traffic light consisting of four alert levels: red for maximum alert, orange for high alert, yellow for intermediate alert, and green for low alert. For example, in the municipalities of La Esperanza (which are those municipalities that have not reported infections of COVID-19 and that are not neighbors with municipalities with reported infections) the opening of all work, social, and educational activities is authorized.
• Size of the work center: Work centers will have to identify the size of the economic unit they represent (small, medium, or large work center), based on the number of employees and the standards established in the Guidelines, in order to implement the corresponding measures.
• Internal characteristics of the workplace: The following characteristics of the workplace should be identified: (1) the personnel in situations of vulnerability or increased risk of contagion for each of the areas or departments of the work center; (2) the personnel who are in charge of caring for minors, older adults, and people in situations of vulnerability or greater risk of contagion; and (3) the areas or departments of the work center (offices, warehouse, etc.).

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.

Panama

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:

• Create a special hygiene committee to attend to COVID-19 matters
• Prepare formal internal protocol and guidelines regulating matters such as controls in the workplace, entry protocols, mandatory use of masks, use of commons spaces, distancing, hands hygiene, stress management, waste management, and cleaning and disinfection of offices, among others
• Pass an inspection from the Ministry of Health (after the two points above are in place), which will lead to a certificate of operation called a Panama Saludable

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.

Peru

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

• Employers must implement a plan for the “Surveillance, Prevention and Control of COVID-19 in the Workplace,” which must be approved by the Health and Safety at Work Committee and registered before the Health Authority, after obtaining approval from the corresponding sector (e.g., mining, production) but before reopening the office.
• Employers must engage health professionals (nurses and/or occupational doctors) to be present at the workplace, depending on how many employees they have, to oversee the employees’ health in the COVID-19 context.
• Employers must identify the risks applicable to each job position, and qualify them as very high-risk, high-risk, medium-risk, or low-risk job posts, in accordance with the Ministerial Resolution.
• Employers must clean and disinfect the workplace and its components on a daily basis.
• Employers must assess employees’ health conditions prior to their return or reentry into the workplace (which includes filling out an epidemiological sheet, checking employees’ temperatures every day, and testing employees for COVID-19 if they hold very high-risk, high-risk, or medium-risk job posts).

During the Health Emergency

• Employers must ensure hand washing and disinfection are occurring at the workplace.
• Employers must provide training sessions to all their employees about health matters related to COVID-19.
• Employers must adopt preventive measures of collective application.
• Employers must ensure the availability of equipment for personal protection and implement protective measures.
• Employers must carry out health surveillance in the context of COVID-19.
• Employers must adopt specific obligations regarding personnel with COVID-19 risk factors.

Finally, employees who are allowed to work must obtain individual labor passes to be able to transit.

Puerto Rico

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:

• Ensuring that all employees wash their hands for 20 seconds or use a hand sanitizer prior to beginning their work and periodically during their work shifts (they must also disinfect their working stations upon arrival and at the end of their shifts)
• Ensuring that people who visit their establishments wear masks, mouth coverings, or scarfs made of fabric or other forms of protection for the mouth and nose area (businesses must implement measures to prevent people who are not complying with the aforementioned protective measures from entering their establishments; employees working at these establishments must be protected in the same manner)
• Providing on-site stations or mechanisms for people to disinfect their hands while they are on the premises
• Ensuring that people who visit the establishment maintain the recommended distance of six or more feet from other people, both inside and outside the establishment, and appropriate measures must, therefore, be implemented to ensure compliance with the recommended physical distancing in queues to enter the establishment and queues within the establishment

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:

• Is a written document specific to the facility/workplace to which it applies and considers the specific services provided/particular tasks performed, the physical premises, and the number of employees
• Is exclusive to the particular workplace
• Contains general information about COVID-19, including its definition, symptoms, and ways in which it can spread
• Includes recommendations issued by local, state, and international agencies regarding controlling the spread of COVID-19
• Establishes the risk classification depending on the level of potential exposure (high, medium, or low)
• Details the process for monitoring personnel prior to entering the workplace
• Indicates the number of employees that will work each day (operating with reduced personnel is recommended)
• Establishes the changes to be implemented to the areas where employees normally take their breaks/meal periods (to limit the number of employees in those areas)
• Describes social distancing measures (space among employees, clients, and visitors; limiting number of clients in the establishment)
• Indicates how adequate ventilation will be provided to ensure adequate airflows and, in places with air conditioner systems, effective filtering
• Describes cleaning and disinfecting practices and frequency for the workplace and work stations
• Provides details regarding hygiene practices for employees, such as areas designated to wash hands and the use and distribution (by the employer) of antibacterial soap, hand sanitizer, or alcohol
• Establishes a schedule for employees to wash their hands
• Provides a list of personal protective equipment (PPE) determined to be necessary considering the nature of the operations (to be provided free of cost to employees)
• Describes procedures to be followed if/when an employee exhibits COVID-19 symptoms, or is diagnosed with the illness (closing, disinfection, or quarantine)
• Describes monitoring practices for positive cases, as well as reporting procedures to OSHA
• Describes how the employer will manage vulnerable employees (examples provided include age, preexisting conditions, and pregnancy)
• Requires the use of face coverings/masks (mouth and nose coverings)
• Includes evidence of training for employees on proper use and disposal of any protective equipment
• Includes evidence that the plan was disclosed/discussed with employees
• Identifies the individual responsible for evaluating, monitoring, and inspecting for compliance with the plan
• Includes the manner in which the plan was discussed with applicable unions and complies with applicable collective bargaining agreements

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.

Uruguay

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:

• Share with employees the Health Ministry’s recommendations for preventing COVID-19 contagion
• Provide personal hygiene materials (soap, hand sanitizer, etc.) and other personal protection elements
• Step up work cleaning actions (air conditioning equipment, work clothes, PPE)
• Identify at-risk populations (due to age or preexisting health conditions) among personnel
• Take steps to organize work so as to minimize potential contagion
• Establish mechanisms and proceedings to report disease’s symptoms among workers

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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For our clients, we have formed a multidisciplinary COVID-19 task force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.

Contacts

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