Faithful to the historically employee-friendly nature of laws and courts in the region, most regulators in Latin America are adopting policies to protect remote workers and their constitutional rights to make unpressured health-related decisions. However, the approach differs throughout the region. This LawFlash outlines the varying teleworking and vaccine regulations across Latin America.
To assist businesses with operating remote workforces in Latin America and those seeking to shift back to an in-office setting, we have created the below guide to help navigate the vaccine mandates and remote working policies of Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Mexico, Panama, Peru, Puerto Rico, and Uruguay.
Remote Working Regulations
The Remote Work Bill (RWB) regulates telework in Argentina. Companies implementing remote working must register with the Ministry of Labor, indicating the software or platform that will be working remotely. Creation of the registry is in progress.
The RWB applies to employees rendering services from a place other than their employer’s offices, regardless of the number of days they work remotely, unless they are providing services at a client’s office or if the remote working is sporadic, occasional, or due to extraordinary circumstances.
Pursuant to the RWB, employees must consent in writing to working remotely and they must have the same rights as those employees working on-site. The written agreement must specify the employee’s daily hours and allow for digital disconnection.
Remote-work employees have the right to digital disconnection, which includes the right not to be contacted and to disconnect from digital and/or technological means outside of their working hours and during their leaves of absence. Further, the employer may not make any requests of or contact employees outside of their working hours. When an employer’s business spans different time zones or in cases when objectively necessary, the employer can send communications outside of the agreed-upon working hours, but the employee is not compelled to reply to those communications until his/her working day starts. Moreover, software and applications used by the employer for remote work must be disabled outside of the agreed-upon working hours.
Notably, employees who have sole or shared responsibility of children under age 13, persons with disabilities, or adults who require specific assistance shall have the right to establish work schedules that are compatible with those care duties, and/or to interrupt their working schedule, as agreed upon through collective bargaining.
Additionally, employers must provide employees with all working tools and support needed for rendering tasks and shall bear all installation, maintenance (including higher costs for services), and repair costs, or, if employees use their own equipment, must compensate them as agreed upon through collective bargaining.
Transnational remote working contracts will be governed by the law where the employee provides services or the employer’s domicile, whichever is more favorable to the employee. If foreign individuals who do not reside in Argentina are hired to work remotely, prior authorization of the enforcement authority is required. Act 27,555, dated August 20, 2020, but in force as from April 1, 2021.
Vaccination is voluntary in Argentina. Employers cannot compel their employees to be vaccinated but may reasonably decide to allow only vaccinated employees in the workplace.
A joint decision (on April 2021) issued by the Ministries of Health and Labor determined that employers may request that an employee (except those with specific risk factors) resume duties on-site 14 days after the employee receives at least one dose of any approved vaccine.
The decision states that employees who choose not to be vaccinated “shall act in good faith and do everything possible to alleviate those damages that such decision may cause to their employers” but makes no further statement regarding the legal implications of an employer mandate requiring that all employees vaccinate before returning to the workplace.
Because employers have a legal obligation to protect the life and safety of all personnel, some companies are not allowing unvaccinated employees into the office and allowing those employees to work remotely, if possible.
The remedy for unvaccinated employees who cannot work remotely is unclear. As such, it would be a risk to terminate an employee with cause for failing to get vaccinated.
Remote Working Regulations
Remote work in Brazil is regulated by the Brazilian Employment Code (CLT). Remote work is captured by article 62 of the CLT and is defined as work in which employees will not be subject to workday controls, nor be paid overtime.
Remote work is further governed by articles 75-A to 75-E of the CLT, and it is characterized as work performed mainly outside of the employer’s premises, relying on information and communication technologies.
Remote work arrangements require the employer and employee to enter into a specific template of employment contract under the CLT. That template will include a “Statement of Responsibility,” in which the employee acknowledges that they have received specific training in connection with rules and recommendations related to ergonomic standards as well as occupational health and safety standards.
Attending the workplace will not affect the remote work arrangement, and the employer may demand an employee’s attendance at on-site meetings or demand that the work be performed on-site if the work activities so require. The employer must include in the employment agreement guidelines in connection with reasonable expenses resulting from the remote work arrangement, including the need to follow company policies and present applicable receipts. The payment of those expenses will not be considered part of the employee’s salary and can cease upon the employee returning to the on-site work modality.
The modification of the remote work arrangement to the on-site modality by request of the employer may take place so long as there is at least a 15-day transition period after the employment contract is amended.
From the employment perspective, there are arguments to take the position of requiring employees to get vaccinated against COVID-19. However, please note that given that there is no mandatory vaccination against COVID-19 for employees in Brazil under the law, this is a highly debated topic, and judges and other labor authorities have issued contradicting criteria on this topic.
The Supreme Federal Court ruled that (1) vaccination against COVID-19 could be mandatory, but not forced as it would violate the fundamental right a person has of inviolability of his/her body (i.e., no invasive measures such as the use of force could be established to demand immunization); and (2) although not forced, indirect measures and/or sanctions could be implemented to promote mandatory vaccination, such as restricting certain activities or presences in certain places to ensure vaccination of the population.
The Federal Constitution sets forth the workers’ guarantee to have work-related risks decreased through health, hygiene, and safety rules. Additionally, the CLT sets forth that it is the employer’s responsibility to enforce safety and occupational health standards, and it is the employee’s responsibility to observe such standards and to collaborate with employers to that end, or otherwise be potentially subject to disciplinary measures.
Considering the above, there are arguments centering on the possibility of employers requiring their employees to be vaccinated, except in cases of certain medical conditions (e.g., autoimmune diseases), pregnancy, or religious beliefs, which should be assessed on a case-by-case basis.
Remote Working Regulations
Teleworking for employees is regulated in Chile. The terms of remote work must be agreed upon in writing in either an employment contract or as an addendum to an employment contract. The written agreement must contain (1) the location of services, (2) whether the employee will provide services totally or partially remote (including the structure if partially remote), (3) the employee’s working schedule, and (4) the employee’s right to disconnection, among other rights. The agreement must be registered with the Chilean Labor Board within 15 working days of its commencement.
Employers must also provide information and training to their employees regarding health and safety concerns related to teleworking, prepare a matrix that identifies such risks, and develop a remote work safety program for the company.
Additionally, the employer must provide its teleworking employees with all the tools necessary to perform work and pay for all expenses generated by teleworking (such as the higher costs of electricity, water, or internet bills). Law No. 21.220.
The Chilean Labor Board has expressly stated that, given the voluntary nature of the COVID-19 vaccination program in Chile, employers cannot subject their employees to mandatory vaccination to return to work.
Remote Working Regulations
There are three modalities of “distance work” with different regulations for each: (1) telecommuting, (2) work from home, and (3) remote work. Under each modality, the employer must report the “distance work” to the Ministry of Labor. Additionally, the employer must update and adjust its occupational health and safety system to account for the “distance work.”
Telecommuting involves all work-related activities that can be performed outside of the regular workplace; in other words, an employee’s activities can be carried out through the information and communication technologies. A contractual agreement is required between the employer and the employee for a specified time and may remain in place so long as the employment relationship remains in force. Additionally, employers must pay for the costs of connections, internet, programs, energy, and transportation (when required by the employer).
Telecommuting may be implemented under the following schemes:
Work from Home is a temporary authorization given by an employer to an employee in order to carry out his/her activities outside of the employer’s facilities, without modifying the employment relationship, when occasional, exceptional, or special circumstances arise that prevent the employee from working on-site. The authorization may be given for a three-month period and can be extended for another three- month period or longer if exceptional circumstances persist. An agreement between the employer and employee is not required.
Employees who earn a salary of up to two monthly minimum wages—for 2022, COP $2.000 (USD $512)—are entitled to a digital connectivity allowance equivalent to COP $117.172 (USD $30). For employees who earn a salary higher than two monthly minimum wages, there is no obligation for the employer to pay any connectivity allowance.
Remote Work is a new work modality that implies that the execution of the employment relationship, during its entire term, is carried out completely remotely using information and telecommunications technologies and, for this reason, there is no need for the employee to have a specific workplace. The main characteristic of this modality is that the employer and the employee must not have any face-to-face interaction whatsoever during the employment relationship. A written agreement between the employer and employee is required.
Employers must pay for the costs of connections, internet, phone, programs, energy, and transportation (if required by the employer). There is no fixed fee established by law and, therefore, companies should provide an allowance under a case-by-case analysis in order to guarantee that the employee can render on a permanent basis his/her remote services. Law 1221 of 2008 and Decree 884 of 2012; Law 2088 of 2021; Law 2121 of 2021.
Employers may not mandate that their employees get vaccinated before returning to work. According to Decree 109 of 2021, vaccination in Colombia is completely voluntary. Also, please note that according to Article 5 of Resolution 777 of 2021, the strategies for the return to on-site work must include unvaccinated employees.
Remote Working Regulations
There are regulations in Costa Rica governing remote work for employees. Under the regulations, employers and employees must sign a remote work contract delineating the terms of the remote work.
Additionally, it is highly recommended that employers establish an internal policy delineating certain company priorities and concerns related to teleworking, such as confidentiality, use of equipment, service conditions, tasks, work hours, expense reimbursement, and handling of outages.
Effective October 2021, private-sector employers may implement a mandatory vaccination policy. In order to do so, employers must maintain an internal policy that details policy requirements and must implement internal programs that provide information regarding vaccines. After implementing the policy, the company can deliver disciplinary actions (up to and including termination).
Remote Working Regulations
There are telework regulations for employers requesting, at their discretion, that employees work from home or any other place different from the employer’s premises. Employers must register the telework implementation with the Ministry of Labor’s online system within 15 days of the implementation.
Employers requiring that employees work from home must pay expenses related to telework activities, including (1) work tools (computer, cell phone, etc.), (2) basic services (electricity, internet, etc.), and (3) health and safety implements. The regulations are silent as to the amount of the employer’s contribution, but the general consensus is that employers should cover the additional costs incurred by employees from teleworking (extra broadband, electricity, etc.).
Vaccination is mandatory nationwide for all individuals over the age of five with some limited exceptions: (1) individuals with a duly certified medical condition or contraindication, and (2) individuals who, in the exercise of their religion, refuse to be vaccinated against COVID-19 (they are protected by their constitutional right to religious freedom). Thus, employers may mandate vaccinations for their employees to return to the workplace.
Remote Working Regulations
Under Mexican law, the “telework” regulation (Chapter XII-Bis of the Federal Employment Act (Ley Federal del Trabajo or LFT)) applies to any job that involves more than 40% of its time in telework.
Under subparagraph I of Article 330-E of the LFT, the employer must “provide, install and maintain the equipment necessary to undertake telework activities, including computer equipment, ergonomic chairs, and printers, among others.” Further, under subparagraph III of that same article, employers in Mexico must “assume all costs derived from employees’ telework, such as payment for telecommunication services (internet) and the proportional part of the electricity bills.”
While the law is silent as to the timing and there is no published binding case law on point, reimbursement of such expenses must be made within a reasonable amount of time. If one considers that pay periods in Mexico are every other week, an argument could be made that making reimbursements of properly documented telework-related expenses every other period (on a monthly basis), for instance, is a reasonable accommodation.
While an employer in Mexico can ask for evidence of vaccination, it cannot discipline an employee for failure to provide such. Employees cannot be obligated to be vaccinated as a condition to return to work. Any vaccination mandate by employers is considered a violation of individual rights afforded by the Mexican Constitution, and termination (or any undertaking of disciplinary measures) due to the employee’s refusal to vaccinate will be considered discriminatory and could result in a claim for wrongful termination and, consequently, the reinstatement of the employee or payment of mandatory severance under the law.
As a general matter, under subparagraph XIX of Article 132 of the LFT, it is the employer’s obligation to provide employees with all prophylactic medication mandated by the sanitary authorities in those places where tropical or endemic illnesses exist when there is an epidemic risk. While Mexico’s Health Ministry (Secretaría de Salud) has not issued mandatory guidelines for employers, it has suggested that people take precautions when in danger of contact with COVID-19. Also, a recently enacted Official Mexican Standard (NOM-035-STPS-2018) dealing with the identification and prevention of psychosocial risk factors at the workplace imposes an obligation on employers to (aside from creating a policy and program to identify those risks) take all necessary steps to identify (and attend to) unsafe or dangerous conditions at the workplace.
There is very little precedent on the supervision and enforcement of Mexican law and the NOM referred to above in light of a health epidemic event; however, there is some risk to employers if they fail to take affirmative steps to prevent the spreading of COVID-19 when there is reasonable fear of it happening, both from a publicity and legal perspective. As to how material the legal risk is, if any, it is difficult to determine at this point.
Notwithstanding the above, employers can ask employees to submit to (and in fact have an obligation to conduct) periodic and reasonable COVID-19 screenings, and implement self-disclosure and virus-spreading prevention measures in the workplace. For instance, employers can ask for mandatory disclosure of (1) an employee’s exposure to a COVID-19–infected person or travel to high-risk COVID-19 jurisdictions, (2) manifestation of COVID-19 symptoms, (3) daily temperature screenings, and (4) use of masks in the workplace, among other preventive steps. Further, should any employee show symptoms, be exposed to infected people, or travel to a high-risk area, the employer could ask for a COVID-19 negative test prior to allowing such employee to return to the workplace.
It should be noted that payment for COVID-19 testing has been customarily paid by or refunded by employers in Mexico, even when there is no clear guidance that would require employers to do so, given the employee-friendly nature of courts and laws in Mexico. If an employee refuses to take the COVID-19 test when reasonably required to do so by the employer, then a case-by-case-basis analysis should be undertaken to discuss the possibility of “cause” for termination. That said, any termination should be carefully considered with the legal and human resources teams, as “cause” is very narrowly defined by Article 47 of the LFT, and given the employee-friendly nature of Mexican employment law and courts referred to above.
Remote Working Regulations
Telework is regulated in Panama and is available only if the employer and employee engage in a written contract outlining:
There is no legislation that supports an employer establishing vaccination as a mandatory condition to return to the workplace.
Remote Working Regulations
There are remote-working regulations that empower employees choosing to work from home. Employers must accommodate remote work for employees at risk either by age or other clinical factors.
The regulations require that employees inform their employers about their decision to work remotely and the place chosen as the workplace. The employer, in turn, must train the employee on the use of required systems, platforms, and applications. If the employee provides the equipment or tools necessary to complete the work, the parties may agree that the employer will pay the additional expenses derived from the use of said tools and equipment, but this is not mandatory.
Employees must be available during working-day hours and have the right to “digital disconnection” during their rest days, leaves, suspension periods, and outside of their working hours, including disconnection from media used to provide services.
The remote-work regulations are in force until December 31, 2022.
Currently, COVID-19 vaccination is voluntary, and employers cannot require that their employees vaccinate to remain employed.
However, since December 10, 2021, unvaccinated employees cannot physically attend work. The exception for employees who work with low COVID-19 exposure and entirely in open spaces expired January 14, 2022. As a result, vaccination is mandatory in the workplace. An employee is vaccinated if he/she has received a complete set of an approved vaccine regimen (e.g., one dose of Johnson & Johnson or two doses of other vaccines, such as Pfizer, Moderna, Sinopharm, or AstraZeneca).
Unvaccinated employees who cannot attend the workplace must work remotely, if possible. If their activities do not allow them to work remotely, their employment relationships will be suspended without pay while they do not work.
Remote Working Regulations
Puerto Rico is regulated by the federal US Occupational Safety and Health Administration (OSHA) regarding this topic. In addition, Law 45-1935 provides mandatory workers’ compensation for work-related accidents, including the designated remote location. Aside from the executive order addressing vaccination requirements, there are no other specific local laws regulating remote working/working from home.
Putting aside the debates on this topic taking place at the federal level in the United States, Puerto Rico local law does not prohibit employer vaccine mandates per se but does require by the current executive order that certain employers mandate that certain employees be vaccinated before returning to the workplace.
The following types of employees must provide proof of vaccination (unless there is a medical or religious exemption, in which case they must provide a weekly negative test or proof of a past positive result with documentation of recovery): first responders; persons who work in healthcare facilities; and teachers, non-teachers, and contractors of schools, education centers, and universities (public or private).
The following types of employees must provide proof of vaccination, a weekly negative test, or a positive result from the last three months together with documentation of recovery: employees or persons who work in public agencies of the executive branch, as well as executive-branch contractors and their employees who work in or frequent governmental offices; municipal employees; employees of employers with 50 or more employees; and employees or persons who work in hotels, inns, hostels, restaurants (including fast food places, food courts, and cafeterias), bars, kiosks, coffee shops, sports bars, theaters, movie theaters, coliseums, convention and activity centers (of a closed or open format) that sell alcoholic beverages or prepared food; beauty salons, barbershops, aesthetic salons, spas, and gyms; childcare centers (including Head Start and Early Head Start); supermarkets and grocery stores (including shops authorized by the WIC Program); casinos; and gas station stores.
Employers who are not covered are urged to make necessary adjustments to require vaccination or weekly test results.
In general, antidiscrimination laws (prohibiting disability, religious, or pregnancy discrimination) and privacy laws might preclude mandating vaccination in particular circumstances.
Given the fast pace of regulatory changes in this area, particularly as it pertains to executive orders, contact Morgan Lewis to confirm that no changes have occurred that may affect the analysis above.
Remote Working Regulations
The Telework Law (Act No. 19,978) regulates teleworking (defined as the provision of work using information and communication technologies, online or offline) between employees and employers. Based on this definition, the law applies to all employees who work remotely, even if only for a few days a week and regardless of their position. An employer may not require an employee to telework, and an employer need not agree to provide a telework environment to its employees; the agreement is wholly voluntary.
Under the law, employees may freely distribute their working hours throughout the week, so long as the employer and employee agree, in writing, as to the maximum hours of work the employee may contribute to a project, or to work, per week. Additionally, the employee has the right to disconnect from work and is not obligated to respond to communications, answer phone calls, or engage in other work activity for at least eight hours between shifts.
If the employer and employee agree to engage in a teleworking agreement, the employer and employee must agree, in writing, about the division of work tools, equipment, and services necessary to engage in remote work. Without an agreement, the employer must pay for the tools (including computer equipment) and services necessary for the employee to complete his/her work.
There is currently no regulation in Uruguay that makes vaccination against COVID-19 compulsory (nor is there a requirement that one be vaccinated to be able to work in an office).
Because Uruguay is a voluntary vaccination state, employers are not entitled to request evidence of vaccination of their employees in order to return to the workplace.
How We Can Help
The Latin America team at Morgan Lewis has deep cultural and business ties with the region and an understanding of the challenges presented to clients doing business in Latin America. Our team is positioned to timely and efficiently assist clients during these challenging times, as well as provide counsel and the legal tools to assist in transitioning to a new post-pandemic reality.
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Thomas C. Mellor