Opinion 1050/18 dated June 15, 2022

Sets the meaning and scope of article 206 bis, in relation to the anticipation of the winter vacation period of educational institutions.

On June 15, 2022, the Labor Directorate issued ruling No. 1050/18, establishing the meaning and scope of Law No. 21,391, which incorporated Article 206 bis to the Labor Code, in connection with the decision adopted by the Ministries of Health and Education, to bring forward the beginning of the winter vacations in educational establishments and extend them by one week, due to the anticipation of the seasonal peak period for the circulation of respiratory viruses other than Sars-CoV-2.

1. Background.

Law No. 21,391, published on November 24, 2021, incorporated Article 206 bis to the Labor Code, which provides for the obligation of the Employer to offer its employees the modality of telecommuting or teleworking, in cases where "the authority declares a state of constitutional exception of catastrophe, public calamity or a health alert due to an epidemic or pandemic caused by a contagious disease”.

This obligation applies to:

1. Workers who have personal care of at least one preschool child;
2. Workers who care for persons with disabilities; and
3. Workers who have the personal care of at least one child under twelve years of age, provided that the measures adopted by the authority imply the closure of basic education establishments or prevent attendance to them.

On the other hand, the Ministry of Health, using the extraordinary powers conferred by Supreme Decree No. 4 of the Ministry of Health dated February 5, 2020, which decreed the health alert for the Sars-CoV-2 virus that causes the Covid-19 disease, on June 14, 2022 issued Ordinary A15 No. 2787, by virtue of which it ordered:

1. To anticipate the beginning of winter vacations for educational institutions from the Region of Arica and Parinacota to the Region of Los Lagos, as of June 30, 2022;
2. Extend the winter vacation period for educational institutions from the Arica and Parinacota Region to the Los Lagos Region by one week, concluding on July 25, 2022.
3. In the case of the Aysén and Magallanes Regions, the vacations will be between July 7, 2022 and August 1 of the same year.

2. Provisions of the opinion of the Directorate of Labor.

By virtue of the foregoing, the Labor Directorate established the meaning and scope of the rules contemplated in Article 206 bis of the Labor Code, providing:

1. That the measure of anticipating the winter vacation and extending it for an additional week, is a measure adopted within the framework of the health alert by Covid-19, for which reason Article 206 bis of the Labor Code applies.
2. That the measure adopted implies the closing of educational establishments and prevents attendance to them.

In view of the above, the Labor Directorate considers that the requirements for the Employer to offer the telework or telecommuting modality to Workers who have the personal care of at least one child under twelve years of age are met.

3. Implementation of telecommuting or teleworking.

A. Implementation proceeding. 

Article 206 bis obliges the Employer to offer the modality of teleworking or telecommuting, only to the extent that the nature of the functions performed by the Worker allows it.

Therefore, if the employee performs activities that cannot be performed remotely or via telework, the Employer shall not be obliged to offer this type of work, maintaining the obligation of the Employee to provide services in person.

B. Requirements for access to the telecommuting or teleworking modality.

To access this modality of work, it will be necessary:

1. That the nature of the Worker's functions allow it;
2. That the Worker provides the Employer with an affidavit expressly stating that the care of the child under 12 years of age is exercised without the assistance or concurrence of another adult.

C. Effects on remuneration.

The implementation of telecommuting or teleworking shall not imply a reduction in the worker's remuneration.

D. Costs of implementing telecommuting or teleworking.

Pursuant to the provisions of Articles 152 quater M and following of the Labor Code, the costs of implementing the telecommuting or teleworking modality must be borne entirely by the Employer.

E. Internal regulation of telecommuting or teleworking.

Article 206 bis of the Labor Code provides that the Company must offer the telecommuting or teleworking modality contemplated in articles 152 quater M and following of the Labor Code, for which reason an annex to the employment contract must be signed between the parties, which must regulate, as a minimum:

1. The duration of the covenant, which may not be less than the duration of the measure ordered by the authority.
2. The place or places where the services will be provided.
3. The circumstance of whether or not the Worker is subject to working hours control.
4. The safety measures to be adopted in the workplace.
5. Equipment or tools to be provided by the Employer.
6. Financial allowances provided by the Employer for telecommuting or teleworking.

4. Final considerations.

It should be noted that, due to the fact that Supreme Decree No. 4 of the Ministry of Health of February 5, 2020, which decreed the health alert for the disease Covid-19 is still in force, the provisions contained in Law No. 21,342 of June 1, 2021, also known as "safe return", which establishes other assumptions in which the Employer must also offer the modality of teleworking or telecommuting to workers, are still in force:

1. They must have a condition that generates a high risk of presenting a serious infection, such as:

• Over 60 years of age.
• Hypertension.
• Cardiovascular disease.
• Diabetes.
• Chronic lung disease
• Other serious pulmonary conditions.
• Renal disease requiring dialysis or similar treatment.
• Transplanted person with immunosuppressive treatment;
• Cancer with or without treatment;
• People with a lowered immune system due to medical conditions or medications.

2. Who have in their care a minor, elderly or disabled person.
3. Who has been a beneficiary of Law No. 21.247 (Protected Maternity Law).

The foregoing, provided that the nature of the Worker's duties allows it and that the Worker consents thereto.