In accordance with global measures against COVID-19 pandemic, the Venezuelan government issued a decree on March 13, 2020 to declare a State of Alert for thirty days (hereinafter the "decree"), which was recently extended for another period of thirty days (hereinafter the "extension").
Under the decree and its extension, all labor activities are suspended until May 13th, 2020. Employment relationships are suspended as well, except for companies that render essential services (those related to the supply of food, health care, medicines, water, electricity, telecommunications, securities, and fuel, among other operations deemed as essential) or that may render services remotely.
As a result, during the State of Alert, employees should not render services at the workplace to prevent contagion, and employers have no obligation to pay salaries. Some duties are still in effect during suspension such as: (i) the payment of a food benefit; (ii) the provision of a house benefit, if this was agreed (e.g., in the case of expatriate employees) or if employers have a legal obligation (e.g., in the case of the caretakers of the residences); (iii) the payment of social security contributions; and (iv) the period of suspension will be considered as part of the employee seniority.
For those employees who have reported contagion symptoms (such as cough, fever or other respiratory symptoms), employers should consider granting paid sick leaves and recommending employees visit the closest medical center for primary medical care, if possible. During these leaves, employers must pay covered employees a third of their salary as an indemnity for sickness under the Venezuelan Social Security Law and Labor Law (although they may choose to provide the whole amount of salary as a special consideration related to the COVID-19 pandemic, if feasible), plus the meal benefit. If it is confirmed any employee is infected with COVID-19, the paid sick leave should be extended and it is advisable to notify authorities in charge of epidemiological surveillance in the country about the employee's diagnosis.
Depending on the circumstances, employers might wish to avoid unilaterally granting annual vacations for employees who are suspended by the decree or by sickness. Because the suspension presumably cannot be deemed as an enjoyable vacation under Venezuelan labor law, authorities might reinstate the employee's right to vacation and/or require repayment of the vacation leave.
As mentioned above, companies that render essential services or that render services remotely might continue to operate, so employers can request to their employees to continue to work. Here are some considerations and suggestions for companies that continue to operate during COVID-19 pandemic:
- It is important to maintain regular, open communication with employees so they can report any presence of fever, cough and respiratory failure.
- Employers should pay wages without any reduction or deduction, unless the parties agreed to some arrangement for overtime, night work, or any work on holidays.
- As mentioned earlier, employers may wish to suspend approval for vacation requests during the pandemic to avoid the risk of repayment. However, if employees insist on taking their vacation time, it is advisable that the parties agree in writing that the employer will grant the vacation because it was requested freely and voluntarily by the employee despite the circumstances.
- There will be a special risk of contagion for those employees who perform work at the workplace. In that situation, employers should: inform workers about prevention measures; provide personal protection equipment, such as sanitizer, disposable tissues, disinfectant wipes, and face masks (mandatory use by decree); and implement medical check-ups by observation to identify possible symptoms. In addition, these health and safety measures should be disclosed and discussed with the health service and health committee, both for their input and so they can help execute the measures and assist with monitoring those employees who have reported symptoms.
- For excepted activities, it is important to take into account that there is a transportation crisis in the country due to a lack of fuel and a decrease in public transportation means. Thus, employees have been struggling to commute to workplaces. For these cases, employers might deduct salaries for absences; but instead and in practice, some companies have been providing transportation, reducing work time to a single shift, or making some accommodations based on the specific conditions of those employees who cannot attend.
- For those employees who are rendering or will render services remotely, it is advisable to agree in writing the wage and hour conditions, and any terms related to the provision of work supplies or tools. To comply with health and safety duties, employers should consider: informing employees about measures to prevent COVID-19 contagion; requesting they provide a description of the conditions of the selected remote work space (including lighting, noise, temperature, and emergency exits, among others); identifying and notifying employees of any labor risk at the site, including psychosocial risks related to isolation; informing employees about all measures to prevent work-related illness and accidents; and informing them about the usage of work tools, especially tools such as computers, portable devices, and apps, among others.
Employers in Venezuela should stay tuned for further developments as the crisis unfolds and should consult experienced labor and employment counsel with any specific questions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.