COVID-19 | Legal Analysis Center
June 3rd, 2020
Decrees No. 297/20 – 329/20 – 332/20 – 347/20 – 355/20 – 367/20 – 376/20 – 408/20 – 459/20 and 487/20
From the events that occurred with the advance of COVID-19 during the month of March of this year, and the legal framework set out below this, it clearly emerges how, in order to protect Public Health, the State gradually ordered measures that promoted a range of waivers to attend work, until finally determining by Decree 297/20 preventive social isolation in general, which was extended by Decree 325/20, Decree 355[i]/20, 408/20 and finalley by Decree No. 459/20 until May 24, 2020 inclusive.
As a general principle, the framework of continuity of tasks was established remotely, and for those who could carry out remote work as well as those who did not, the payment of remuneration was established on a regular basis. All this in a framework of contractual good faith. On the other hand, for those workers with essential activities, the possibility of requiring additional hours was arranged, as well as adapting tasks and reorganizing the working-day.
Subsequently, Decree No. 329/20[ii] prohibited dismissals without fair cause, as well as dismissals and suspensions, for reasons of lack or reduction of work and force majeure for the period of SIXTY (60) days counted from March 31, 2020. The situation provided in section 223 bis of the Labor Contract Act was excepted, which establishes, in the event of force majeure or lack or reduction of work, the possibility of agreeing non-remunerative individually or collectively amounts approved by the enforcement authority.
With the same scope as Decree 329/20, on May 19, 2020 Decree 487/20 was published, which extended the prohibitions provided for by the first one, for a period of SIXTY (60) additional days as of May 31, 2020.
Complementary to the prohibition of all dismissals without cause, as well as dismissals and suspensions based on causes of force majeure or economic crisis, DNU 332/20 was issued creating the Emergency Assistance Program for Work and Production.
Said Emergency Assistance Program for Work and Production, was later modified by DNU 376/20, dated April 20, 2020, maintaining certain assigned benefits, eliminating and expanding others, which companies and employees may access in the extent that they meet certain requirements validated by the authorities of the Program.
All these legal norms and complementary provisions are considered in the following points. Notwithstanding the foregoing, in the current context where the normal development of work activities has been impacted in one way or another, we believe it is important not to rule out the possibility of promoting temporary agreements at different levels of activity and / or individuals, both with staff and with the respective union entities if feasible, observing the special situation of each company, and the impact on its own activity.
Another aspect of labor relations, referring exclusively to dependent workers who, due to carrying out essential activities, have not been included in preventive and compulsory social isolation, Decree 367/2020[iii] has arranged to consider COVID-19 as an occupational disease. In this way, workers affected in the terms and conditions of the regulation may receive the benefits of the Work Risks Act 24.557.
1. Regulatory Framework. DNU 297/20[iv] and Complementary Norm.
Since the advance of COVID-19 and the first measures taken by Executive Branch in our country, various changes began to occur in the daily activities.The successive regulations that were issued gradually expanded and established the isolation of people, causing several impacts on labor relations, and differently in each specific activity.
On March 13, 2020, preventive measures were taken by the Executive Branch (DNU 260/20[v]), establishing 14 days of isolation to any suspected case, for those who had medical confirmation of having contracted COVID-19, for those who had close contact with people from both cases and also those who arrived in the country after having passed through “affected areas” in the previous 14 days.
Likewise, by Resolution of the Ministry of Labor and Social Security No. 202/20 of the same date, the duty of assistance to the workplace, with full remuneration, was established for all the workers who are in the situations described in section 7 of DNU No. 260 and all others of a similar nature that in the future emanate from the health authority, regardless of the nature of the legal relationship at issue, considering for these purposes also those who provide services continuously under non-dependent figures such as service locations and those that are developed in an analogous way within the private sector, the benefits resulting from scholarships, internships and medical residences. In the case of moonlighting or multiple recipients of services, the effects envisaged in the suspension referred to in this rule will reach the different contracts.
Workers reached by the exemption from the duty of assistance to the workplace who do not have medical confirmation of having contracted COVID-19, or the symptoms described in inc. a) of section 7 of DNU No. 260, whose habitual or other similar tasks may be carried out from the place of isolation, must, within the framework of contractual good faith, establish with their employer the conditions under which said work will be carried out.
The scope of DNU 260/20 was subsequently extended by Resolution No. 207/20[vi] of the Labor and Social Security Ministry, dated March 16, 20, to all workers over sixty (60) years of age, pregnant workers, and those defined by the national health authority as a risk group, such as those with obstructive respiratory or lung diseases, heart diseases, immunodeficiencies, diabetics, kidney failure, among others. Beyond the exemption from going to work, if the habitual or other similar tasks could be carried out from the place of isolation, within the framework of contractual good faith, they should establish with their employer the conditions in which said work would be carried out.
Finally, as of the issuance of DNU 297/2020[vii] subsequently issued by the Executive Branch on March 19, 2020 and within the framework of the measure of “preventive and compulsory social isolation” from March 20 to May 24 inclusive of current year (Decree No. 459/20), section 2 established that all workers must refrain from attending their workplaces. The mentioned isolation recognizes exceptions, within the framework of section 6 of the aforementioned decree, in relation to the people affected by the activities and services declared essential in the emergency, and their movements should be limited to the strict compliance with those activities and services.
In all these cases, employers must guarantee hygiene and security conditions established by the MINISTRY OF HEALTH to preserve the health of workers, and workers will have the right to full enjoyment of their usual income, in the terms established by the regulations of the MINISTRY OF WORK, EMPLOYMENT AND SOCIAL SECURITY.
In accordance with Administrative Decision 429/2020[viii], it was decided to incorporate new essential activities and services, and the posting of workers should be limited to strict compliance with the activities and services considered essential.
In line with the mandatory social isolation, Resolution 297/2020[ix] of the Ministry of Labor and Social Security of the Nation, provided in its section 1 that workers reached by the “preventive and compulsory social isolation” will be exempt from the duty of assistance to the workplace, but when their tasks or other similar ones can be carried out from the place of isolation, they must within the framework of contractual good faith, establish with their employers the conditions under which said work will be carried out. In this case, they will receive their usual remuneration.
Likewise, workers who provide services in the activities described in section 6 of DNU 297/20 and its regulations, will be considered “essential personnel” in the terms of the Resolution of the MINISTRY OF LABOR, EMPLOYMENT AND SOCIAL SECURITY No. 207 dated March 16, 2020. The continuity of such activities in these circumstances constitutes an exceptional requirement of the national economy (section 203, Labor Contract Act No. 20,744, OT 1976 and its amendments).
Also, according to section 4, the reorganization of the working day is enabled in order to guarantee the continuity of the production of the activities declared essential in adequate health conditions in accordance with the protocols established by the health authority. In this sense, the regulation provides that it will be considered a reasonable exercise of the powers of the employer.
2. Summary of the New Regulatory Framework. DNU 329/20 and 487/20 (i)
On the occasion of the publication of DNU No. 459/2020[x], the extension of the health emergency provided by DNUNo. 260/20 and its amendment, DNU No. 297/20 was decreed, establishing the measure of “preventive and mandatory social isolation”. Thus, the measure has been extended until May 24, inclusive, as well as the effect of its complementary regulations.
At the same time and by provision of the same DNU No. 329/20, dismissals without fair cause were prohibited, as well as dismissals and suspensions for the reasons of lack or decrease of work and force majeure for the period of sixty (60) days counted from the date of publication of the decree in the Official Gazette, a circumstance that took place on March 31, 2020. After that, on May 19, 2020 Decree 487/20 was published, which extended the prohibitions provided for by the first one, for a period of SIXTY (60) additional days as of May 31, 2020.
As determined by DNU 329/20 (and its successor, Decree No. 487/20[xi]), any dismissal or suspension contrary arranged to what has been indicated, will not produce any effect, keeping existing labor relations and their current conditions in force.
Finally, it has been ratified that suspensions made under the terms of section 223 bis of the Labor Contract Act, which enables the payment of cash assignments, as non-remunerative benefits, will not be included within the prohibitions. It is referred to those who are delivered in compensation for suspensions of the labor benefit and that are based on lack or reduction of work causes, not attributable to the employer, or force majeure duly proven. Such suspensions and the designated assignments should be agreed individually or collectively or approved by the enforcement authority. The aforementioned applies when, by virtue of the aforementioned reasons, the worker does not perform the tasks at his expense. These allocations are only taxed the contributions established in Laws No. 23.660 and 23.661.
Likewise, by Resolution No. 279/20 of the Ministry of Labor, Resolution No. 219/20[xii] of the Ministry itself was repealed, as well as the remaining regulations issued as a consequence of it, and it was ratified that workers reached by the “preventive and mandatory social isolation” will be exempt from the duty of assistance to the workplace, although if their tasks or other similar ones could be carried out from the place of isolation, in this sense, they must, within the framework of contractual good faith, establish with their employer the conditions in which said work will be done.
In relation to workers who provide services in the activities described in section 6 of DNU No. 297/20 and its regulations, they will continue to be considered “essential personnel” in the terms of the Ministry of Labor, Employment and Social Security Resolution No. 207 of March 16, 2020, taking into account that the continuity of such activities in these circumstances constitutes an exceptional requirement of the national economy (section 203 Labor Contract Act).
Those who provide services continuously under non-dependent figures such as service locations and those that are developed in an analogous way within the private sector, scholarships in workplaces and internships, as well as medical residences and cases of moonlighting or multiple recipients of services, were included within the concept of workers.
In the framework of the provision, the power to reorganize the working day was ratified in order to guarantee the continuity of the production of the activities that were declared essential in adequate health conditions in accordance with the protocols established by the health authority, noting that it will be considered in this sense as a reasonable exercise of the powers of the employer.
At the same time, it was ratified that in the event of necessity of hiring personnel and while the validity of the “preventive and compulsory social isolation” lasts, said hiring should be considered extraordinary and transitory under the terms of section 99 of the Labor Contract Act.
Abstention from attending the workplace -which implies a prohibition to do so except in the exceptional indicated cases- will not constitute a day off, vacation or holiday, but rather a public health decision in the framework of the emergency decreed, in such a so that the remuneration or income corresponding to the days included in the prohibition, supplements or additional legally or conventionally provided for “holidays”, may not be applied, except in those cases in which said prohibition coincides with a legally or contractually foreseen holiday.
It is important to note that, despite the measure being published on April 1st,2020, its validity was determined retrospectively and since Resolution No. 219 came into force (previous and repealed), that is, from March 20, 2020, and it will continue in force while the sanitary emergency imposed in order to protect public health lasts.
We highlight that by means of Administrative Decision 446/20[xiii], it was established that only as of April 6, 2020, the instrument to validate the situation of those who fall within any of the exceptions provided for in section 6 of the DNU No. 297/20, its amending and complementary regulations and in Administrative Decision No. 429/20, as well as those established in the future, will be the “Unique Enabling Certificate for Circulation – Emergency COVID-19”, previously approved by Resolution No. 48/20[xiv] of the Ministry of the Interior. Likewise, the aforementioned certificate will be valid for the period of social, preventive and mandatory isolation, while on the same date those issued under any other format will lose their validity.
Finally, those workers who may have to move due to force majeure, (section 6, inc. 6, of DNU No. 297/20), must prove such circumstance, in accordance with the provisions of section 2 of the Resolution of the Ministry of the Interior No. 48/20.
3. Summary of the New Regulatory Framework. DNU 329/20 and 397/20 (ii)
On April 30, 2020, on the occasion of the Framework Agreement signed by CGT, the UIA, the Ministry of Production and the Ministry of Labor, Resolution No. 397/20 of the Ministry of Labor was published, which determined that the submissions made jointly by trade union entities with guild status and companies for the application of suspensions under Section 223 bis of Act No. 20. 744 (o.t. 1976) and its amendments, which are in accordance with the above-mentioned Framework Agreement, establishing the same or better conditions and accompanying the list of affected personnel, shall be approved, subject to a legal control.
Companies may also make this filed unilaterally, in which case it will be sent to the corresponding trade union for a period of 3 days, which may be extended by 2 additional days at the request of the trade union representative.
Once the indicated period has expired, the silence of the union entity will be considered as agreeing with the agreement suggested by the employer representation. If the union entity opposes, it will be important for the parties to open a dialogue and negotiation instance.
Those submissions made within the framework of Section 223 bis of ActNo. 20.744 (o.t. 1976) but which do not fully comply with the aforementioned framework agreement shall be subject to prior control by the Ministry, which shall indicate the considerations corresponding to the required procedure.
With regard to the conditions set out in the above-mentioned Framework Agreement, we emphasize that:
- It can be applied in respect of those persons who cannot provide their usual services, providing that in such case the situation will be considered as a suspension under the terms of Section 223 bis of the Employment Contract Law and/or any equivalent institute provided for in professional statutes, Act 22.2250 or collective bargaining agreements.
- The term of validity shall be up to 60 days, with effect from 1 April 2020.
- The amount that employers must pay as a non-remunerative benefit or the monetary allowances that are given in compensation for the suspension of the work benefit within this framework cannot be less than 75% of the net salary that would have corresponded to the worker if he or she had worked, and all the contributions and contributions must be made by Acts. 23660 and 23661 and the payment of the union dues.
- Under these conditions or where a higher percentage is established, the enforcement authority shall automatically approve the agreements submitted.
- Employers may provide for the application of the suspensions in a simultaneous, alternate, rotating, total or partial manner, according to their respective production realities.
- Those workers who have established with their employer the conditions in which they will provide services from the place of isolation in compliance with the provisions of article 1 of Resolution MTEySS NO 279, in the terms agreed upon, cannot be included in this modality, nor can those workers excluded from the duty of assistance to the workplace by the dispensation contained in Resolution 207/20 regarding persons with health risk.
- If the supplementary payment provided for in Section 8 of DNU 376/20 is granted as a benefit, the amount of the supplementary allowance paid by the ANSeS shall be considered part of the monetary benefit previously ordered (75% of the net salary), so that the amount to be paid by the employer shall supplement it until the established percentage is reached.
- The shortened mechanism provided shall not apply to the situation of those who have already agreed or will agree in the future on other criteria for suspension.
- Those who apply this regulatory framework shall keep their staffing levels unchanged for a period equal to that of this regulation.
The resolution and mode of presentation will be effective from the day of its publication (April 30, 2020).
4. Regulatory Framework Summary. DNU 332/20 and 376/2020
Through Decree 376/20, the Emergency Assistance Program for Work and Production was modified, originally established by DNU 332/20 for employers and workers affected by the health emergency. Due to the reforms introduced to the original Program, the possibilities of requesting them were expanded, as well as the amounts of assistance increased.
I. Benefits of the Emergency Work Assistance Program:
- Postponement or reduction up to NINETY FIVE PERCENT (95%) of the payment of employer contributions to the Argentine Integrated Social Security System.
- Complementary Salary paid by the State for all workers in the private sector.
- Zero Rate Credit for people adhered to the Simplified Scheme for Small Taxpayers and for self-employed workers under the conditions established by the HEAD OF MINISTERS ‘CABINET and the Central Bank of the Argentine Republic, within the framework of their respective powers, with subsidy from the ONE HUNDRED PERCENT (100%) of the total financial cost
- Comprehensive unemployment benefits system: workers who meet the requirements set forth in Acts Nro. 24.013 and 25.371 will receive an economic unemployment benefit in accordance with the considerations stipulated in section 10 of this Decree.
II. Requirements and/ or criteria to obtain the benefits of the points 1, 2 and 3. (must meet one or more of them)
- Economic activities critically affected in the geographical areas where they take place.
- Relevant number of workers infected by COVID-19 or in compulsory isolation or with a work exemption for being included in a risk group or family care obligations related to COVID-19.
- Substantial reduction in sales after March 12, 2020.
For the activities, companies and independent workers who continue to be affected by the social distancing measures, even when the preventive and compulsory social isolation has ended, the benefits may be extended until October 2020 inclusive.
Originally, the Program was foreseen for the services and activities affected by isolation, although later, by DNU 347/20, those who carry out activities and services declared essential in the health emergency and whose personnel were exempt from complying with “preventive and compulsory social isolation”, in accordance with Decree No. 297/20 and Administrative Decision No. 429/2020 and its possible extensions, to the extent that they could demonstrate high negative impact on its service and / or activity. Also any other employer that externalizes concrete indications that allow inferring a representative decrease in their level of activity, and whose objective criteria, sector and activity, as well as other evaluation elements to determine the award, has been delegated to the Head of Cabinet of Ministers.
- Postponement of maturities
Those who meet the requirements established in the Decree, will have access to:
- Postponement of maturities for the payment of employer contributions to the Argentine Integrated Social Security System.
- Reduction of up to NINETY FIVE PERCENT (95%) of employer contributions to the SIPA Regime.
In the same decree, AFIP was delegated to establish special maturities for the payment of employer contributions to SIPA accrued during the months of March and April of the current year, and in turn, facilities for the payment of the same applicable to employers defined by the regulations to be issued. Thus, at the moment the deadline has been set for the payment of employer contributions to SIPA for the period accrued in March 2020 as follows:
- Cuit ended from 0 to 3: June 16, 2020
- Cuit ended from 4 to 6: June 17, 2020
- Cuit ended from 7 to 9: June 18, 2020
* This measure is complementary to the reduction or postponement of up to 95% of the payment of employer contributions to SIPA foreseen in the Emergency Assistance Program for Work and Production.
- Complementary salary
It will consist of a sum paid by ANSES for all or part of workers who meet the requirements indicated above.
The amount of the assignment will be equivalent to FIFTY PERCENT (50%) of the net salary of the worker corresponding to the month of February 2020, and may not be less than a sum equivalent to a minimum, vital and mobile salary ($ 16.875)[xv] or exceed two minimum vital and mobile wages ($ 33.750), or the total net salary for that month.
This compensatory allocation to the salary will be considered part of the payment of the remuneration or the money allocation provided for in section 223 bis of the Labor Contract Act, the employer will have to pay the remaining balance until completing the salary as remuneration.
Originally it was foreseen with a graduation system regarding the amount, according to the number of employees, limiting itself for those who were included in the CCT, however DNU 376/20 eliminated said gradualness as well as restrictions.
- Zero Rate Credit
The Program is intended for “Monotributistas” and for self-employed workers under the conditions established by the HEAD OF THE MINISTERS ‘CABINET and the Central Bank of the Argentine Republic, within the framework of their respective powers, with subsidy from ONE HUNDRED PERCENT (100%) of the total financial cost. To access the benefit, some of the conditions detailed below must be met.
The amount of the financing may not exceed a quarter of the upper limit of gross income established for each category of the Simplified Regime for Small Taxpayers, with a maximum limit of PESOS ONE HUNDRED FIFTY THOUSAND ($ 150.000). Table with maximum credits is exposed.
The financing will be disbursed in three equal and consecutive monthly payments. To each one of these payments, the amount equivalent to the payment of the total amounts that the workers must pay for the resulting monthly periods will be added as an integrated tax and social security contributions paid by the “monotributista” or mandatory social security contributions from the workers’ regime. The referred amount will be periodically withheld and deposited in the AFIP.
Finally, it was determined to raise the unemployment benefit during the period established by the Head of Cabinet of Ministers, to a minimum of SIX THOUSAND PESOS ($ 6.000) and a maximum of TEN THOUSAND PESOS ($ 10.000), delegating to the Ministry of Labor and Security Social the operation for the system. In all cases, the employers reached by the benefits must accredit to AFIP the payroll of the personnel reached and its effect on the activities achieved.
The Ministry of Labor and Social Security will consider the information and documentation sent by the company, being able to reveal additional data that allows expanding and / or verifying those initially provided and requesting the documentation it deems necessary. Likewise, it may arrange for evaluation visits to the establishment’s headquarters, in order to ratify and / or rectify conclusions.
The provisions of DNU 376/20 will be applicable with respect to the economic results that occurred from March 12, 2020. The Chief of the Cabinet of Ministers may extend the benefits provided for in this decree in whole or in part, modifying the activities, affected companies and independent workers, after the intervention of the EVALUATION AND MONITORING COMMITTEE OF THE EMERGENCY ASSISTANCE PROGRAM FOR WORK AND PRODUCTION, depending on the evolution of the economic situation, until June 30, 2020, inclusive.
Notwithstanding this, for the activities, companies and independent workers that continue to be affected by the social distancing measures, even when the preventive and compulsory social isolation has ended, the benefits may be extended until the month of October 2020 inclusive.
5. Regulatory Framework Summary. DNU 347/20
Through decree 347/20, dated April 6, 2020, the EVALUATION AND MONITORING COMMITTEE OF THE EMERGENCY ASSISTANCE PROGRAM FOR WORK AND PRODUCTION was created.
The aforementioned Committee will be made up of the heads of the MINISTRIES OF PRODUCTIVE DEVELOPMENT, OF THE ECONOMY and OF LABOR, EMPLOYMENT AND SOCIAL SECURITY, and of the FEDERAL ADMINISTRATION OF PUBLIC REVENUE.
The Committee will define the criteria that make it possible to frame the provisions of section 3 of Decree 332/20, where the requirements to access benefits were defined. To this end, the Committee shall have the following functions:
- Define, based on technical criteria, the relevant facts that justify the inclusion of the “beneficiaries”
- Judging, based on technical criteria and the definitions established in subsection a), regarding the situation of the different economic activities and recommending or advising against their inclusion
- Judge, based on technical criteria and the definitions established in subsection a), regarding specific requests that require a special treatment and recommend or advise against their inclusion
- Propose to the Chief of the Cabinet of Ministers all the measures he deems conducive in order to achieve greater efficiency in meeting the objectives of the Assistance Program.
Despite the exclusion from the Assistance Program, given special circumstances that would have caused a high negative impact on the development of their activity or service, employers of activities excepted as considered essential, may submit the application to join the Program, and as in all other cases, following the opinion of the ASSESSMENT AND MONITORING COMMITTEE OF THE EMERGENCY ASSISTANCE PROGRAM FOR WORK AND PRODUCTION based on technical criteria, the Chief of the Cabinet of Ministers may accept or deny such requests.
In such framework, by General Resolution of AFIP 4693/20[xvi], the “web” service called “Emergency Assistance Program for Work and Production – ATP” was arranged, to which all employers must enter so that, in cases that if so determined, they can Access to the benefits provided in Decree No. 332/20 and its amendment. Its inscription must be done between the 9th and 15th of April inclusive, and provide the required information between the 13th and 15th of April inclusive, both deadlines being extended to April 16 inclusive. Subsequently, and in view of the benefits reform and the incorporation of employees and employers not originally foreseen to participate, by AFIP General Resolution No. 4702/20[xvii], enrollment was reopened during April 20 to 23 inclusive.
Based on the analysis of the technical reports prepared by the Committee, by Administrative Decision 591/20[xviii] of the Cabinet of Ministers, the requirements for the analysis and granting of benefits established in DNU 376/20 were established.
With respect to the Complementary Salary established in section 2, paragraph b) of Decree No. 332/20, as amended, it is recommended that this benefit be granted with respect to salaries earned in April 2020 to workers who meet the following conditions:
- That the employer’s principal activity as of March 12, 2020 is among those defined in Committee Minutes No. 1 and No. 2, as amended by No. 3.
- The nominal variation in billing between March 12 and April 12, 2020 with respect to the same period in 2019 is 0 or less than 0, that is, the employer does not record a nominal increase in its billing.
- That the number of employees of the companies indicated in the previous point does not exceed the total number of 800 workers in dependence relationship as of 29 February 2020.
In turn, for companies with more than 800 workers as of February 29, 2020, in order to evaluate the provenance of the benefits contemplated by Decree No. 332/20 and its amendments, their financial situation will be assessed based on the information collected on the AFIP’s “Emergency Assistance Program for Labor and Production – ATP” website and any other information that may be deemed necessary.
In turn, during the current fiscal year and the following TWENTY-FOUR (24) months to the end of the following fiscal year to the one in which the benefit was granted, they must comply with the following requirements (according to Minutes 4, 7 and 11 of the ATP Evaluation and Monitoring Committee):
- They may not distribute profits for the fiscal periods closed as from November 2019.
- They may not re-purchase their shares directly or indirectly.
- They may not acquire securities in pesos for their subsequent and immediate sale in foreign currency or their transfer in custody abroad.
- They may not make outlays of any kind to people directly or indirectly related to the beneficiary whose residence, establishment or domicile is in a non-cooperative jurisdiction or one where taxation is low or zero.
For the purpose of calculating the workforce, the terminations of employment that occurred up to 20 April 2020 shall be excluded. The aforementioned requirements will be applicable during a fiscal period. Subsequently, the system of restrictions was again modified and extended, being then under the following scheme:
In relation to the Complementary Salary provided for in section 2, item b), and section 8 of Decree No. 332/20 and its amendments, they estimated to consider as net salary the amount equivalent to 83% of the gross remuneration earned for the month of February 2020 according to the sworn statements submitted by the employer.
The agreed benefit should be deposited exclusively in a bank account in the name of the beneficiary, and the employer should inform and/or manage it.
In the event of failure to comply with the requirements defined in both cases, the agreed benefits will be forfeited and the beneficiary will be obliged to make the relevant refunds to the National State.
At the same time, in accordance with the provisions of General Resolution 4719/2020[xix], employers are given the possibility of reimbursing the benefit of the complementary salary allocation if they choose not to comply with the obligations set out in Acts 4, 7 and 11 of the ATP Evaluation and Monitoring Committee. For such purposes, they must generate the Electronic Payment Voucher (VEP) in accordance with the provisions of General Resolution No. 1778, as amended and supplemented, with the following codes:
- Complementary wage reimbursement: tax/concept/subconcept (ICS) 016-019-019
- Complementary salary reimbursement – financial interests: tax/concept/subconcept (ICS) 016-019-095.
Transfers must be made: (a) For salaries accrued in April 2020: up to and including 31 May 2020. (b) For salaries accrued in May 2020 and subsequent months, if the benefit is extended: up to and including the 20th day of the month in which payment is made. c) In those cases in which the period of time between the date of payment of the benefit and the due date of the transfer to this Organism is less than FIVE (5) working days, the employer may transfer the corresponding amounts within the latter period. d) The interest to be applied on the amount of the capital (amount of the benefit to be reimbursed) shall be calculated from the date in which the amounts have been credited to the workers’ accounts, up to the date of the effective transfer.
Finally, on May 14, 2020, AFIP General Resolution No. 4716/20 [xx]was published, establishing that employers previously defined by General Resolution No. 4.693/20, and its amendments, may re-register in order to obtain the benefits set forth in Decree No. 332/20 and its amendments, with respect to salaries and contributions accrued during the month of May 2020.
In this sense, employers must access the “Emergency Labour and Production Assistance Programme – ATP” web service from 14 May 2020 up to and including 21 May 2020.
To determine the estimate of the Complementary Salary for May 2020, the rules recommended by the Programme Committee and accepted by the Head of Government Ministers shall apply. Therefore, references made in this regard to February 2020 shall now be made to March 2020.
6. Employees who carry out activities declared essential. Work Risk Coverage Dec. 367/2020
This published legal norm (Oficial Gazzette April 14, 2020) establishes that the disease COVID-19 produced by the SARS-Cov-2 coronavirus will presumably be considered as a professional disease and consequently as a contingency covered by the Work Hazard Law 24.557 (LRT) regarding dependent workers:
- excluded by legal exemption from preventive and compulsory social isolation in order to carry out activities declared essential, and
- while the isolation measure or its possible extensions are in force
The Work Risk Insurers (ART) may not reject the coverage of the previously mentioned contingencies. Once the complaint is received together with the corresponding confirmed diagnosis issued by a duly authorized entity, they must adopt the necessary precautions so that the injured worker immediately receives the benefits of the Work Risk Law.
The definitive determination of the professional nature of the pathology will be in each case in charge of the Central Medical Commission (CMC), which must confirm the presumption initially attributed by this Decree through the essential and necessary direct and immediate causal relationship of the disease reported with the work carried out in the context of dispensing from the duty of preventing and compulsory social isolation.
The CMC may reverse the burden of proof in favor of the worker when:
- a significant number of infected people are found in activities carried out in the context of isolation and in a specific establishment in which they have closeness or possible contact, or
- other facts revealing the certain probability that the contagion was due to the fulfillment of its tasks are demonstrated
The formal processing requirements and special procedural rules will be established by regulation.
For health workers, the decree refers to two particular considerations:
- the disease is directly and immediately related to the work carried out unless proven otherwise, and
- the presumptions apply until 60 days after the end of the validity of the health emergency (Dec. 260/20) and its possible extensions (to date until May 12, 2021).
Finally, the decree establishes that its provisions apply to contingencies whose disabling manifestations have occurred as of March 20, 2020, the date on which preventive and compulsory social isolation was ordered (dec. 297).
[i] DNU No.355/20 http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/336212/norma.htm
[ii] DNU No. 329/20. (http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335976/norma.htm)
[iii] DNU No.367/20. http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/336262/norma.htm
[iv] DNU No. 297/20 http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335741/norma.htm
[v] DNU No.260/20 http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335423/norma.htm
[vi] Resolution No. 279/20 http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335988/norma.htm
[viii] AD No. 429/2020 http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335789/norma.htm
[ix] Resolution No. 279/20 http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335988/norma.htm
[x] DNU No. 459/20. https://www.boletinoficial.gob.ar/detalleAviso/primera/228958/20200511
[xi] DNU No. 487/20. https://www.boletinoficial.gob.ar/detalleAviso/primera/229469/20200519
[xii] Resolution No. 219/20 (http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335796/norma.htm)
[xiii] AD No. 446/20 (http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335981/norma.htm)
[xiv] Resolution No. 48/20 (http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/335940/norma.htm)
[xv] MVMS (minimum, vital and mobile salary $ 16.875)
[xvi] Resolution No. 4693/20 http://servicios.infoleg.gob.ar/infolegInternet/anexos/335000-339999/336209/norma.htm
[xvii] AD No. 702/2020. https://www.boletinoficial.gob.ar/detalleAviso/primera/228124/20200422
[xviii] AD No. 591/2020. https://www.boletinoficial.gob.ar/detalleAviso/primera/228124/20200422
[xix] AFIP Resolution No. 4719/2020. https://www.boletinoficial.gob.ar/detalleAviso/primera/229512/20200519
[xx] AFIP Resolution No. 4716/20. https://www.boletinoficial.gob.ar/detalleAviso/primera/229296/20200514
- Juan Carlos Etchebehere
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