Regarding the possible impact of an epidemic such as COVID-19, the health of employees must be the primary objective of every employer, as well as the normal continuity of their business when the circumstances allow it.
This compels employers to act with prevention, which means they have to implement preventive and technical measures that reasonably guarantee the safety and health of employees within the workplace, and even to create special emergency protocols or extend existing emergency plans.
Prevention measures such as providing personal cleaning supplies to visitors or employees to disinfect their work areas, generating prevention guidelines for employees such as hand hygiene, cough etiquette, avoiding internal meetings with a high number of people, using computer mechanisms or technology systems that allow teleconferencing or video calls to avoid face-to-face meetings, amongst others are not the only measures that should be adopted in the workplace; it is also necessary to implement and adopt other practices that may not be regulated in company policies or in the law, but that if implemented, they could be used to avoid or minimize the risk of exposing employees to these epidemics. Among these practices, we can mention:
- Home office (in those cases where it is possible)
- Travel restrictions for employees to areas of high risk of infection, inside or outside the country;
- Restriction of visits to the company by suppliers, contractors or visitors from high-risk areas ;
- Among others.
It is also advisable for employers to review the level of compliance of the obligations arising from the General Law on the Prevention of Risks in the Workplace, since it is very likely that the Ministry of Labor, through the General Directorate of Social Security and the General Directorate of Labor Inspection, will carry out inspections and verify compliance regarding the occupational safety and health requirements that should be applied in the workplace.
The Government of El Salvador, through the Council of Ministers, under Executive Decree No. 12, dated March 11, 2020, decreed a State of National Emergency due to the COVID-19 Epidemic, establishing in Article 3 of that decree that no worker may be fired if he or she is quarantined by order of the competent health authority due to COVID-19, nor may his or her salary be discounted for that same reason.
The aforementioned Decree establishes a guarantee of employment stability, starting from the day the quarantine was ordered until up to three months after it has ended, unless of course there are legal grounds for the termination of the contract without liability for the employer. At the same time, it states that the quarantine ordered because of the COVID-19 epidemic will be treated, for all economic and legal effects, the same way as the temporary incapacities for work caused by common diseases, which are regulated in the Labor code, the Public Employees' Leave and Vacation Law and the Social Security Law.
In this regard, Article 24 of the Regulation for the Application of the Social Security Regime establishes that employees will be entitled to receive a daily allowance for temporary incapacities for work. The allowance corresponding to the first three days must be paid by the employer and as of the fourth day it will be paid by the Social Security Institute.
For all the above mentioned reasons, an employer may not terminate an employment contract or discount the salary of employees who enter a quarantine decreed by the competent health authority. Quarantine is a procedure of isolation, observation or surveillance that must be carried out for the period and in the way that is determined by the Ministry of Health, in accordance with the provisions of Article 136 of the Health Code.
In that sense, any measure that the employer adopts in the context of the COVID-19 crisis must take into account the welfare of the labor force and at the same time it must guarantee the employment stability of the employees.