COVID-19 | Legal Analysis Center
October 13th, 2020
Original Version March 30th, 2020
*Updates added in October 13th, 2020 are in colour blue
As a consequence of the issuance of the Decree Nbr. 297/2020 (the “Decree 297”) by the Federal Executive Branch, the Precautionary and Mandatory Social Isolation became effective. Basically, its purpose is for people to (i) remain in their regular homes for its duration; (ii) refrain to go to their place of work; and (iii) in general, avoid travelling on routes, roads and public spaces except to procure food and cleaning and medical supplies. Originally, the Precautionary and Mandatory Social Isolation would be effective until March 31, 2020 but said term has been extended successively until April 13, 2020, until April 26, 2020, until May 10, 2020 and June 7,2020 -inclusively- as established through Decrees Nbr. 325/20, published on March 31, 2020, Nbr. 355/2020, published on April 11,2020, Nbr. 408/2020 published on April 26,2020, and Nbr. 493/2020 published on May 25,2020.
Decree 520/20 determined that as of June 8, 2020, two different legal regimes will be established according to the epidemiological situation of each jurisdiction. Originally, this new stage was established until 06.28.20, and it was extended by Decree Nbr 576/20 (published on June 29), Decree Nbr 605/20, Decree Nbr 641/20, Decree Nbr 677/20 Decree Nbr 714/20, Decree Nbr 754/20 and Decree Nbr 792/20 until 10.25.2020:
- The “Mandatory Precautionary Social Isolation” (“ASPO”) actually remains in the territories of AMBA (including the City of Buenos Aires and 35 municipalities of the province of Buenos Aires), departments of General Pueyrredón, Bahía Blanca, San Nicolás and Tandil, of the province of Buenos Aires; departments of San Fernando, Comandante Fernández, Mayor Luis Jorge Fontana and Chacabuco of the province of Chaco; departments of Biedma and Escalante of the province of Chubut; departments of Capital, Santa María, Punilla, Colón, Tercero Arriba and General San Martín of the province of Córdoba, departments of Manuel Belgrano, Ledesma, El Carmen, Palpalá, Susques, Yavi, Rinconada and San Pedro of the province of Jujuy; department of Capital abd Chilecito of the province of La Rioja; departments of Capital, Luján de Cuyo, Las Heras, Maipú, Guaymallén, Godoy Cruz, Tunuyán and Tupungato of the province of Mendoza; departments of Neuquén, Plottier, Centenario, Senillosa, Cutral Có, Plaza Huincul and Zapala of the province of Neuquén; the city of Bariloche and Dina Huapi and department of de General Roca of the province of Río Negro; departments of Cerrillos, Rosario de Lerma, General Güemes, La Caldera and Capital of the province of Salta; departments of Rawson and Capital of the province of San Juan; departments of General Pedernera of the province of San Luis; city of Río Gallegos, El Calafate y Caleta Olivia of the province of Santa Cruz; departments of Rosario, La Capital, General López, Caseros, Constitución, San Lorenzo, Las Colonias and Castellanos, of the province of Santa Fe; departments of Capital and Banda of the province of Santiago del Estero; department of Río Grande of the province of Tierra Del Fuego, Antártida E Islas Del Atlántico Sur; department of Capital of the province of Tucumán.
- The implementation of the “Mandatory Precautionary Social Distance” (“DiSPO”) in the rest of the jurisdictions not covered by ASPO.
The main characteristics of both regimes will be explained below, together with the restrictions applicable to each and those common to both; the requirements to change from one regime to another, and the exceptions to compliance.
1. Precautionary and Mandatory Social Isolation
In those jurisdictions in which the ASPO continues, the scheme and list of exceptions established in Decree 297 and the subsequent Administrative Decisions of the Chief of Ministers remain in force. A distinction is made between “essential activities” and “other excepted or non-essential activities”. The first ones are those listed in article 11 of Decree Nbr 792/20 and the second ones are all those other activities that have been exempted from the ASPO and/or the prohibition to circulate through Administrative Decisions of the Chief of Ministers of the Nation. Some of the exceptions apply to all jurisdictions include in ASPO, while other apply only to certain jurisdictions, which had requested and obtained the specific approval of the Chief of Ministers. The list of every exception can be consulted in: https://www.argentina.gob.ar/coronavirus/aislamiento/exceptuados. Travelling on routes, roads and public spaces of the people included in the mentioned exceptions must be limited exclusively to the fulfillment of the authorized activity.
The validity of these exceptions will require that each Governor or the Head of Government of the City of Buenos Aires establish the date from which it will be carried out.
In the City of Buenos Aires, Decree 265/20 (modified by Decree 274/20), 281/20 and 297/20 (modified by Decree 299/20) have established schedules of activities according to their restoration date.
In the Province of Buenos Aires, Resolution No. 2322/20 of the Chief of Ministers is currently in force, which approved a list of activities authorized and the list of municipalities according to the phase in which they are currently in.
Resolution 326/20 of the Ministry of Productive Development (B.O. 06/30/20 –supplement-) published as Annex I a list of exporting companies that are authorized to operate. In addition, Annex II of the same resolution establishes the procedure for exporting companies not included in the previous list to request authorization from said Ministry. Lastly, Annex III establishes the procedure to request the authorization by the suppliers of exporting companies.
Section 15 of Decree 792/20 establishes that in main urban centers, departments and parties of up to FIVE HUNDRED THOUSAND (500,000) inhabitants included in the ASPO, the Provincial Governors may establish new exceptions to compliance with the “Mandatory Precautionary Social Isolation” and the prohibition to circulate in order to authorize industrial, service, commercial, social, sports or recreational activities.
Meanwhile, section 16 establishes that in main urban centers, parties or departments with more than FIVE HUNDRED THOUSAND (500,000) said exceptions shall be established by the Chief of Ministers of the Nation at the request of the respective provincial authorities and or of the Head of Government of the City of Buenos Aires.
In all cases, they must have the prior approval of the provincial health authority or the City of Buenos Aires, as appropriate, and indicate the protocol that will be implemented for the operation of the each activity, being able to adhere to one of the included in the “Annex of Protocols authorized by the national health authority” established in the terms of Decree Nbr. 459/20. If the activity to be authorized does not have a protocol previously approved and included in the mentioned Annex, a protocol proposal must be presented including, at least compliance with all the recommendations and instructions provided by the national health authority.
In order to authorize new exceptions, the Decree requires the employer to guarantee the transfer of workers, without the use of the public service for the transport of passengers by buses, trains and subways. To do this, the employer may contract automotive transport services, vehicles enabled for the taxi service, remis or similar, provided that they transport on each trip only one passenger. In all cases, the Resolution of the Ministry of Transportation Nbr. 107/20 must be complied with, through which the requirements for the circulation of urban and suburban automotive transport services were established.
Decree 605/20 settles that the exceptions granted may be gradually implemented, suspended and/or resumed by each Governor or by the Head of Government of the City of Buenos Aires in their territorial jurisdiction. Decree 641/20 adds that in no case will social or family events or gatherings be authorized in closed spaces or in private homes.
Finally, the following activities are expressly prohibited:
- Public and private events: social, cultural, recreational, sports, religious and of any other nature that involve the attendance of people.
- Shopping centers, cinemas, theaters, cultural centers, libraries, museums, restaurants, bars, gyms, clubs and any public or private space that involves the attendance of people.
- Interurban, interjurisdictional and international public passenger transport, except for the cases listed in section 4.
- Tourist activities.
2. Mandatory Precautionary Social Distance
As mentioned before, Decrees 520, 576, 605, 677, 714, 754 and 792 have expressly established a new Mandatory Precautionary Social Distancing regime, which implies reversing the rules of prohibitions and permits with respect to the previously mentioned ASPO regime. This means that, while in ASPO the rule is the prohibition of activities and circulation and the exceptions must be expressly established, in DiSPO the rule is the permission of activities and circulation within a certain territorial area and subject to certain limits and general conduct rules.
The main characteristics of the regime are the following:
– Circulation outside the limit of the Department or Party is prohibited, unless a “Unique Enabling Certificate for Circulation – Emergency COVID-19” had been obtained. Therefore, it is reasonably implicit that within the limit of the Department or Party of residence the circulation will be, in principle and unless expressly provided otherwise, free and will not require a circulation permit.
– Empowers the Governors of the Provinces to order preventive isolation with respect to people who enter the province from other jurisdictions, after the intervention of the provincial health authority and for a maximum period of fourteen (14) days, with the exception of those who must travel to carry out any of the essential activities established in article 11 of Decree 792/20.
– Empowers the provincial authorities to issue regulatory rules to restrict circulation by hours or by zones, in order to avoid situations that may favor the spread of the SARS-CoV-2 virus.
2.2. General conduct rules:
– Maintain a minimum distance of two (2) meters between each other.
– Use face masks in common areas.
– Assiduously sanitize the hands, cough in the elbow crease, disinfect the surfaces, ventilate all rooms and strictly comply with protocols, recommendations and instructions of the provincial and national health authorities.
2.3. Economic activities:
Economic, industrial, commercial or service activities may be carried out, as long as they have an operating protocol approved by the provincial health authority, which covers all the recommendations and instructions of the national health authority and restricts the use of closed surfaces to a maximum fifty percent (50%) of its capacity.
The provincial authorities, in attention to the epidemiological conditions and the risk assessment in the different Departments or Parties of the jurisdiction in their charge, may regulate days and hours for the performance of certain activities and establish additional requirements for their performance, in order to prevent the circulation of the virus.
2.4. Sports, Artistic and Social Activities:
Sports, artistic and social activities may be carried out, as long as the general conduct rules are complied with and they do not involve more than ten (10) people.
To maintain social distance in closed places, the density of occupation of rooms (meeting rooms, offices, dining room, kitchen, changing rooms, etc.) should be limited to one (1) person every two and a quarter (2.25) square meters.
2.5. Prohibited activities in the DiSPO (or that require express authorization by the Chief of Ministers):
- Cultural, recreational, religious and events in public or private places with more than ten (10) people. These events should preferably take place in open spaces, or strictly respecting the authorized protocol that includes the social distance which cannot be less than TWO (2) meters, and in places with adequate ventilation.
- Social or family events in closed spaces or in private homes, in all cases and regardless of the number of attendees, except for the group living together.
- Practice of any sport where more than ten (10) people participate or that does not allow maintaining the minimum distance of two (2) meters between the participants.
- Cinemas, theaters, clubs, cultural centers.
- Interurban, interjurisdictional and international public passenger transport, except for expressly authorized cases.
- Tourist activities.
3. Conditions that must be verified for mutation of the applicable regime.
Regardless of the jurisdictions reached by DiSPO at the time of Decree 520/20 and its extensions, the list of conditions may change depending on compliance with the following parameters:
- The health system must have sufficient and adequate capacity to respond to health demand.
- Department or Party must not be defined by the national health authority as those that have “community transmission” of the SARS-CoV-2 virus.
- The ratio of confirmed cases, defined as the quotient between the total confirmed cases of the last TWO (2) epidemiological weeks closed, and the total of confirmed cases corresponding to the previous two weeks, must be less than 0.8. This indicator allows to observe the increase or decrease in cases of the last TWO (2) weeks in relation to the previous weeks. If the indicator is between 0.8 and 1.2, it is considered a stable evolution, if it is higher than 1.2 it is considered an increasing evolution and if it is less than 0.8 is considered decreasing. It will not be necessary to fulfill this requirement if, due to the small or null number of cases, the aforementioned calculation cannot be carried out.
If a district in the DiSPO regime does not comply with these thee conditions, it will be defined whether it continues in the DiSPO regime or passes to ASPO, in a joint evaluation and decision between the national and provincial health authorities, within a comprehensive epidemiological risk analysis and a sanitary study.
4. Provisions common to both regimes
Notwithstanding the distinctions made between both regimes, there are some regulations that continue to be common in both cases:
4.1. People at higher risk: Workers over sixty (60) years of age, pregnant or included in groups at risk as defined by the National Ministry of Health and those whose presence in the home is essential for care children or adolescents, continue to be exempt from the duty of assistance to the workplace, regardless of their place of residence. Additionally, Decree 792/20 established that private sector workers will receive non-remunerative compensation equivalent to their usual remuneration, net of contributions and contributions to the Social Security System. Workers and employers must continue to make personal contributions and employer contributions corresponding to Obra Social and the National Institute of Social Services for Retirees and Pensioners -INSSJP- Laws Nos. 23,660, 23,661 and 19,032.
4.2. Use of Public Transport
The use of intercity and interjurisdictional public passenger transport service authorized to circulate is admitted only for people who must travel for the development of any of the activities listed in section 11 of Decree 792/20 (essential activities). The Chief of Ministers is empowered to expand or reduce the enumeration provided for in this section, as well as for those who must attend medical treatments and their companions.
In the areas where the DiSPO shall apply, the Provincial Governors may extend the authorization for the use of intercity and interjurisdictional public passenger transport to other activities that are not contemplated in section 12, exclusively for the jurisdiction in their charge.
4.3. Unauthorized persons to circulate: There are cases in which people are not authorized to circulate, even though they are included in the exceptions of Decree 297 and other cases mentioned in section 1 and /or who even reside in any jurisdiction reached by the DiSPO.
Section 23 of Decree 792/20 established that in no case a persons who have the status of “suspicious case” or the status of “confirmed case” of COVID-19 can be able to circulate, according to definitions established by the National Health Authority, nor those who must comply with isolation in the terms of Decree Nbr. 260/20, its amendments and complementary regulations.
Decree 260/2020 has established restrictions for the following cases:
- Those that have the condition of “suspicious cases”, which consists of every person who has a fever and one or more respiratory symptoms (cough, sore throat or respiratory distress) and who, in addition, has been in any of the “affected areas” or have been in contact with confirmed or probable cases of COVID-19. The definition may be updated by the health authority, depending on the epidemiological evolution.
- Those who have medical confirmation of COVID-19.
- The “close contacts” of the persons included in sections 1) and 2) above.
- Those who arrive in the country having passed through “affected areas”.
Any person included in the list above –or who has the status of “suspicious case” – is obliged to comply with the mandatory isolation for a term of 14 days –and/or for the duration of the disease according to the assumption -, even when it is excepted in the terms of Decree 297 and concordant norms.
4.4. Meetings in workplaces: In both regimes it is prohibited the gathering between employees for rest, recreation, lunch, or any other type of activity, carried out in closed spaces without strict compliance with the social distance of TWO (2) meters between each other and without adequate environmental ventilation. In order to comply with this, the Decree states that the employer shall adapt the rest shifts, the workplace and the necessary controls.
4.5. Social meetings: As of Decree 714/20, social meetings of up to 10 people in public spaces or open-air public access were authorized, as long as they maintain a minimum distance of TWO (2) meters between them, wear face masks and strict compliance with the protocols of activities and the recommendations and instructions of the health authorities. Use of Public Transport is not allowed for social meetings. Each local jurisdiction may limit days and hours.
4.6. Educational activities: Decree 792/20 authorized the resumption of face-to-face classes and non-school educational activities according to the parameters of evaluation, stratification and determination of the level of epidemiological risk and conditions established in Resolutions No. 364 of July 2, 2020 and No. 370 of October 8, 2020 of the Federal Council of Education, its supplements and amendments.
Therefore, if the risk is low, face-to-face classes may be resumed in a staggered and progressive way at all educational levels and modalities; and if the risk is medium, non-school educational activities (artistic, sports, recreational, school support, or others) may be organized in groups of no more than TEN (10) persons, preferably outdoors, and organize face-to-face activities of closing of the school year for seniors at the primary, secondary and higher levels.
5. How to instrument or manage exceptions
To be able to circulate in any of the jurisdictions reached by the ASPO regime or to circulate outside the limits of the Department of Party of residence in the DiSPO, it will be necessary to obtain the “Unique Certificate for Circulation – Emergency COVID – 19” which is personal and non-transferable in accordance with the provisions of Resolution MI 48/2020 and of Administrative Decision of the Chief of Ministers Nbr. 446/20. This certificate must be presented to the competent authority when circulating on public roads together with the individual’s ID. The certificate must be downloaded through the website: https://www.argentina.gob.ar/circular. It is currently the only instrument from which you can validly accredit the circulation permit, even in situations of force majeure. However, the enforceability in case of force majeure is questionable and must be evaluated in each specific case given that, by its nature, a situation of force majeure refers to specific or special or unforeseen situations and that, in many cases, must be attended to urgently (for example, in medical emergency). Thus, in many of these cases it will not be factually possible to manage and obtain the corresponding permission.
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