Venezuela

1. Can we require employees to work from home? The general rule under Venezuelan law is that the parties must be in agreement for an employee to work from home.   However, an exception could apply under Venezuela's occupational health and safety legislation when it is reasonably considered that the employees' lives or health are in imminent danger if they continue working at their usual worksites.

 

2. What if an employee can't practically carry out their work from home – can they be required to take paid leave? Do we have to pay their salary anyway? The general rule under Venezuelan law is that the parties must be in agreement for paid leave to occur. However, again, an exception could apply where the employees' lives or health are in imminent danger by working at the usual workplace.

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3. Are employees who self-isolate entitled to be paid as usual? This is not directly regulated by the Venezuelan labor legislation. However, the same considerations regarding employees' lives or health being in imminent danger should apply.

 

4. Can employees refuse to come to work?  In principle no, except if employees have a reasonable belief that their lives or health are in imminent danger if they show up to work at the office.  Indeed, Venezuela's occupational health and safety legislation entitles employees to stop working, leave unsafe work conditions or interrupt work if they reasonably believe that their lives or health are in imminent danger. In this case, employees would continue to receive their salary and having the length of interruption computed as part of their seniority or terms of service.

 

5. Health checks / medical testing: can we require our employees to have their temperatures checked or run other health checks?  Although the Venezuelan Constitution generally protects employees from involuntarily undergoing medical examinations, an exception exists when lives are in danger or in circumstances determined by the law. An epidemic that affects the workplace, such as a COVID-19 outbreak, should fall under this exception.

 

6. What are my obligations around maintaining a safe working environment? Although not exhaustive, Venezuelan occupational health and safety legislation mandates that employers:

  • Adopt measures aimed at guaranteeing adequate health, hygiene, safety and wellness conditions at the workplace.
  • Ensure that its Occupational Health and Safety Service maintains a System of Epidemiology Surveillance of Occupational Accidents and Illnesses, in which said Service must register both common illnesses and occupational illnesses suffered by the employees.

Measures may include:

  • Keeping up to date with changing government, medical, guidelines and travel advice.
  • Reminding employees of good hygiene practices.
  • Providing adequate hand washing facilities, hand sanitizer and tissues.
  • Cleaning communal areas.
  • Providing employees with information on the symptoms of COVID-19 and instructing them on what to do if they have infection concerns.
  • Updating employees regarding changes to policies and practices (e.g., working from home and travel policies).

 

7. Can an employee refuse to travel?  Yes, if the employee has a reasonable belief that the employee's life or health would be in imminent danger by travelling.

 

8. Should employers cancel events that require travel? Not necessarily.  Employers should evaluate all relevant health and sanitary information available and assess the risk level.

 

9. Business shutdowns due to the virus outbreak – what options are available to employers? The Venezuelan labor legislation contains several restrictions and prohibitions affecting or regulating the employers' right to shut down their businesses. Employers cannot shut down a business without justification, and/or in an illegal manner. However, the law does not specify what constitutes justification for shutting down a business or what constitutes an illegal shut down. If the business shut down is deemed unjustified and illegal, the executives or representatives responsible for the decision may face six to 15 months' arrest. Unions or workers can request for the Ministry of the People's Power for the Social Process of Work (the Ministry of Labor) to intervene. The Ministry of Labor may then order the employer to resume business activities. If the employer fails to comply with this order, the Ministry of Labor may order the occupation of the business and the resumption of the business activities, and appoint a Special Administration Board, presided by the workers, to carry out this mandate.  The SPA will have all powers necessary to ensure the functioning of the company and preserve the jobs.

The Venezuelan labor legislation prohibits dismissals without cause of most employees (with a few exceptions). Business considerations do not constitute just cause for dismissal.  In addition, a presidential Decree protects most employees against dismissal without cause duly proven before and authorized by the competent Labor Inspector.  The employee usually can continue to work during the proceedings and dismissal cannot occur until it is approved by the Labor Inspector.

The Venezuelan labor legislation also prohibits mass dismissals (the dismissal of a significant number of employees in a short period not to exceed six months). The number of dismissed employees for mass dismissal to occur varies, depending on the number of employees working for the company. Employees may request reinstatement with back pay under any of the protections listed above.  

Under any of the situations described herein above, employers are advised to obtain legal counsel in order to analyze each situation, assess all risks and determine the best options and courses of action to implement.