Since the beginning of the pandemic, many employees have had doubts about the procedures that are presented in their work regarding the powers of companies to adhere to reductions in working hours, extensions, among others. One of the questions is whether the employer can fire or sanction a collaborator if he does not respect the health protocols of the place.
Erika Barrantes, labor director of the Sfera firm, explained that article 81 subsection f of the Labor Code establishes that the employer may terminate the employment relationship when the worker does not commit himself to the safety measures of the company due to his recklessness or inexcusable carelessness, be it to the place where the work is done, or with the people who are there.
“If the protocol was communicated to the workers that it is mandatory and sanctions were established in case of non-compliance, when they fail to comply with these provisions they can be reprimanded and if the conduct persists they can be sanctioned according to the seriousness of the offense”, Barrantes commented.
Employers can`t force workers to assist in a high-risk work area
The employer can`t force the employee to travel to an area at high risk for COVID-19 even if it’s the regular office, even if the employment contract stipulates that the worker has to travel to that area during the employment relationship.
“If it has never been part of his duties or what he was hired for, then it is not his obligation and can legally refuse to do so. It is always important to talk openly with the employer to assess other options, especially in the case of employees who present risk factors,” said Barrantes.
The expert also indicated that it is important to assess whether the worker is under a remote work regimen. “We must remember that remote work is voluntary for the parties and must be agreed through a contract or addendum to the original contract. When remote working has been agreed after the start of the employment relationship, the employer has the power to grant and revoke said modality when it deems appropriate, so it can force the worker to return to the office if requested within ten calendar days in advance,” she added.
If the remote working modality has been agreed upon at the beginning of the employment relationship, the worker cannot be forced to work from the office.
Workers can offer their services to other companies in their free time According to the expert, the workers whose working hours were reduced can take advantage of their free time and work with another company. “The Political Constitution establishes that work is a right for the individual, so if the worker is on a reduced working day, once he complies with his schedule, he is no longer at the employer’s orders, so yes he can work for another company in his spare time”, emphasized Barrantes.
The labor director of the Sfera firm added: “The worker must take into account if he is paid for exclusivity or if the employment contract establishes clauses in which the worker undertook to provide exclusive services to the employer during the employment relationship. If so, he cannot work for another company in his free time, because that would be a breach of the provisions of the employment contract”.
Finally, Barrantes recalled that when the worker stops attending work without the employer’s permission and just cause for two consecutive days or more than two alternate days within the same calendar month, the employer may terminate the employment contract by article 81 of the Labor Code.