Since March 10, 2020, the Bolivian Authorities officially reported various cases of COVID-19 in the country in which the development of labor relations has been affected by the regulations that have been issued all along.

The almost periodic issuance of these regulations, communiqués and news (which in many cases are ambiguous, contradictory or imprecise) has generated confusion and uncertainty for employers when defining on how they will manage their labor relations during this quarantine period.

Ferrere's labor practice suggests that employers can assume a protocol of activities in order to maximize the efficiency of human resource management in this period.
This suggested protocol has the following pillars: i) Knowledge, ii) Planning and iii) Execution.

1) Knowledge. -
• Access and permanent update to the regulations issued by the Government.
• Knowledge of the correct application of the regulations issued applicable to the specific case of your Company.
• The rights and obligations that you have in this period as an Employer
• The civil, criminal and labor contingencies that the Employer may have in case of non-compliance with current regulations.
• How and when to carry out the necessary managements and procedures to obtain special permits.

2) Planning. -
• Define the business strategy for the activities to be carried out in this period (if they are going to continue developing activities or will be suspended).
• Define which are the essential personnel in the company if they continue to carry out activities.
• Define working conditions for this period - clear rules.
• Define those responsible for: i) obtaining information, ii) management of procedures and permits, iii) operational issues, iv) control of working conditions and safety measures to follow and v) communication with workers.
• Planning of measures to be taken in case of regulatory change.

3) Execution. -
• Comply with what is planned.
• Control and monitoring of working and safety conditions.
• Permanent communication with workers.
• Permanent updating and understanding of the context.

CURRENT STATUS OF LABOR RELATIONS IN THE PRIVATE SECTOR.

1) Suspension of work activities. -
The suspension of work activities o public and private entities at a national level has been determined from 00:00 on Sunday, March 22 until April 15, 2020.

2) Exceptions. -
• The suspension of work activities does not apply to: Public and private health services, the Armed Forces, the Bolivian Police, institutions and companies that provide public services, public and private food production industries, provision of inputs for production food, which provide care to vulnerable sectors, means of transport for emergency care, the production of hygiene products and medicines, supplies or producers of basic necessities, markets, supermarkets and fuel supplies.
• Entities and companies that carry out the exceptional activities permitted, will provide the transportation of their personnel from their home address to the place of work and return, under their entire responsibility and charge.
Public and private entities that carry out exceptional activities according to the nature of their operation, must have the Certificate of Authorization that contains a QR code issued by the Ministry of Labor.
• It prohibits public and private entities, that have the Certificate of Authorization for exceptional activities, from requiring the services of dependent personnel who are comprised of risk groups determined in Art. 5 of Ministerial Resolution No. 189/20 dated March 18, 2020.
• The personnel that provide services during the total quarantine period, must keep the biosafety measures determined in the current regulations.
• The company that can work uninterruptedly 24/7. - Public and private companies, people dedicated to supply activities or producers of necessities, must carry out their activities twenty-four (24) hours a day from Monday to Sunday in order to guarantee the supply of products to the entire population. The supply with its suppliers must be from 2:00 p.m. to 5:00 a.m., according to the modality of working hours applicable to its activity.


3) Salaries. -
• During the validity of the total quarantine, workers of public and private entities will receive the payment of their salary.
• Payment of wages must be made on a regular basis; no expansion has been provided for the payment of wages.
4) Inspections of the Ministry of Labor. -
The Ministry of Labor, Employment and Social Welfare, through the Departmental and Regional Labor Headquarters, will carry out permanent verifications before public and private entities to guarantee compliance with Supreme Decree No. 4199, Bi Ministerial Resolution N ° 001/20 and other regulatory provisions.

5) Processes in the Ministry of Labor. -
• Suspension of the administrative procedural deadlines by orders dated March 18 and 19, 2020 of all administrative appeals that are in the process or are pending resolution.
• Suspension of administrative actions carried out by the departmental and regional work headquarters: Reincorporation Hearings, Hearings to pay Social Benefits, Workplace Harassment and all other administrative actions that merit the holding of hearings;
• Suspension of the procedural deadlines for the issuance of definitive reports or administrative acts, due to the Reincorporation and Workplace Harassment Procedure, as well as:
• The period of visa for contracts due to the Reincorporation and Workplace Harassment Procedure.
• The visa deadline for foreign employment contracts.

6) Payment of social Benefit. -
In the event of termination of the employment relationship, the period of 15 days for the payment of social benefits is in force and may be carried out via bank transfer or other modality that the employer may adopt during the total quarantine.

7) Payment of contributions to the Health Fund.
Contribution payments must be made within the usual deadlines and may be made by bank transfer.
This applies except for contribution payments to the National Health Fund which due date for the month of February was expanded and must be canceled without legal surcharges as a maximum term until April 20, 2020. Likewise, the filing of payrolls (public sector) is extended until April 30, 2020. The filing of payrolls of the other managing entities, will be subject to what each managing entity has internally established.

8) Payment of Contributions to AFP (Administrators of pension funds). -
The deadline stablished on the due date of March 31 for the contribution payment of February is suspended.
The terms and deadlines that expire during the declaration of Total Quarantine will be resumed according to the analysis and parameters to be arranged by the Executive body of the Plurinational State of Bolivia.

Frequent Inquiries. -

1) Can the Employer unilaterally grant vacations to its workers?
In this quarantine period, it is not recommended that Employers unilaterally grant vacations to their workers, whether collective vacations or individual vacation.
However, we consider that it is viable and that by "parties’ agreement" the employer and its workers can define the following: i) collective vacations or ii) individual vacation. Ideally the agreement of both parties should be supported in a document or at least in an email.
While employers are empowered to establish a shift role and vacation schedule for their dependent staff, Supreme Decree No. 4200 ordered the suspension of public and private activities with the enjoyment of assets, for which any unilateral measure by the employer carries the risk that at the end of the quarantine the Ministry of Labor may establish that it be considered illegal or null.

2) Can the Employer unilaterally establish the telework or home office modality?
In Bolivia there is no regulation on teleworking or home office.
However, there is also no regulation that prohibits it; therefore, it is totally feasible for the employer and its workers to agree to carry out work activities temporarily under this modality.
The employer must clearly establish what the conditions of teleworking or home office will be and for this: i) must verify that the worker has all the conditions and / or tools, ii) must establish the hours in which the worker will provide their services (in order to avoid overtime claims later), iii) the worker must be given reasonable time to carry out his food supply according to the exit schedule established by the government.

3) Can a license be established without benefits?
Since the Government has ordered a suspension of public and private activities with benefits for the period of total quarantine, it is not legal for an employer to dispose of the license without benefits. However, the employer and the worker can “agree” to a leave without benefits, in which case there must be: i) documentary support for that agreement and ii) the terms of the agreement must be clear, especially the time of duration of the license.

4) Can the effects of the employment contract be temporarily suspended?
It is not possible, in Bolivia there are no regulations that empower the employer to suspend the effects of the employment contract in periods of crisis or emergency.


5) If working hours are reduced, can the salary be reduced?
In Bolivia it is prohibited for the employer to unilaterally make a reduction in wages. In the case there is a unilateral salary reduction, the affected worker may request the Ministry of Labor to instruct the restitution of the previous salary.
On the other hand, regulations establish the possibility of a reduction in wages agreed between the employer and the worker.

6) Can layoffs be made in this period?
In Bolivia, the principle of job stability rules. Therefore, dismissals must obey a justified and statutory reason.
However, in this quarantine period, the following scenarios should be considered:
•Work activities are suspended during the quarantine period; therefore, dismissals could not be unilaterally developed in companies that have suspended their activities.
• In those companies that are still developing their activities because they are included in the exceptions established by Supreme Decree No. 4200, any dismissal must be carried out in accordance with current regulations and procedures.

7) What can the employer do when a worker refuses to perform tasks claiming risk of contagion, can the sanctioning law be applied?
• Because of the suspension of work activities has been ordered, only those employers that are within the exceptions provided by the Supreme Decree
No. 4200 could require their workers to appear at their work source. However in order to comply with this the following aspects must be considered: i) there is an express regulation that establishes that certain employers may continue to carry out their activities; ii) the employer must have all the permits, records and authorizations to carry out these tasks; iii) the employer must take charge of the transfer of its workers to the place of work and of return; and iv) the company will take all the necessary measures to ensure the personnel’s health and for the prevention and containment of Covid-19.

• It is possible to apply disciplinary sanctions: i) Verbal or written warning; ii) Failure to pay time not worked, in accordance with the provisions of article 52 of the General Labor Law, which establishes that the salary is that which the worker receives in payment for his work; and iii) In the event that the worker does not appear at his work source for more than six continuous days unjustifiably, proceed to his or her dismissal due to abandonment of duties, and it must be considered as a tacit resignation from his / her work source.

If you have any questions or queries about this alert, please contact FERRERE.

Alejandro Pemintel Rodrigo Montellano
apemintel@ferrere.com rmontellano@ferrere.com