COVID-19: Legal Provisions in Guatemala
From March 17 from 00:00 to March 31 at 24:00, Government Decree No. 5-2020 (hereinafter the “Decree”) of the President of the Republic established a “State of Public Calamity” throughout the national territory as a result of the World Health Organization’s pronouncement of the COVID-19 coronavirus epidemic as a public health emergency of international importance and the Ministry of Public Health and Social Assistance’s Plan for Prevention, Containment and Response to Cases of Coronavirus (COVID-19) in Guatemala.
The Decree restricted the constitutional rights recognized in Articles 5 (Freedom of action), 26 (Freedom of movement), 33 (Right of assembly and demonstration) and 116 (Regulation of the strike for State workers) of the Political Constitution of the Republic of Guatemala, for the period indicated in the preceding article.
In addition, in the Information Bulletin of 17 March this year, the President of the Republic reported the following:
- Suspension of work and activities in the different State agencies, as well as in the private sector for the established time.
- Prohibition of events of any kind and number of people.
- Prohibition of sports, cultural and social activities.
- Prohibition of the operation of public transport, both urban and extra-urban.
- Prohibition of visits in all prisons, as well as in places of confinement of minors in conflict with the criminal law throughout the country.
- Prohibition of visits in all institutions for the care of the elderly and senior citizens.
- Suspension of face-to-face religious celebrations.
- Closure of outpatient clinics in hospitals.
- Closure of all shopping centres.
- Prohibition of hoarding of basic necessities, goods and medicines.
- Prohibition for foreigners to enter the country through any border.
- Prohibition of meetings in bars, discotheques and similar.
- Closing of air, land and sea borders throughout the territory.
Notwithstanding the above, through this bulletin, information was also provided on the exceptions to the prohibitions, such as for the acquisition of food, pharmaceutical products and basic necessities, and assistance to centers, services and health establishments, public transportation for health reasons, the sale of fuel, supermarkets, hotels, security companies, banks and cooperatives, garbage extraction services, the agrifood and agricultural industry, telecommunications companies, industries dedicated to energy production and humanitarian transportation, and water supplies.
Requirements to operate (applicable to companies within the exceptions)
They will be able to continue operating once they fill out the Request for Approval form that is published on the Ministry of Economy’s digital platforms www.mineco.gob.gt and on its social networks.
For the approval to be effective, the applicants must commit in the form to respect the safety, hygiene and innocuousness protocols and to provide safe private transportation to their employees in the face of the prohibition of movement of public collective transportation.
Legal assignment of the rights and obligations of the parties
Legally speaking, it is our opinion that the state of calamity is not expressly regulated by the Guatemalan Labor Code. However, if it seems to have the same effects as a “Total Collective Suspension” of the labor relationship, regulated in Article 71 of the referred code, by suspending the work and activities in the different State agencies, as well as in the Private Sector for the established time.
Based on the above and taking into account that social welfare for reasons of public calamity is the priority of the government as expressed in various communications from public authorities. We suggest to the different companies that will not continue working on a regular basis, to evaluate the following legal measures:
- Holidays, wages and working hours:
As a general principle in our labour law system, none of these labour guarantees can be affected, or reduced in any way in an ordinary scenario, except for the corresponding legal exceptions.
However, in light of recent events under the state of calamity established by the Decree, we believe that such situations could be agreed upon by mutual agreement with the workers so that neither party is seriously affected given the situation in the country, informing the corresponding labor authority, if applicable.
- Suspension of employment contracts:
Article 71 (Causes for total collective suspension), paragraph (e) of the Labour Code provides for the suspension of employment contracts due to force majeure or fortuitous events.
Such suspension does not imply the termination of the work contract, nor does it extinguish the rights and obligations arising from the same in terms of return to work and continuity of the contract.
It will take effect from the end of the day of the event giving rise to it, provided that the employer initiates, before the General Labor Inspectorate, full verification of the cause on which it is based, within the three days following the aforementioned. The above in accordance with Article 73 of the Labour Code.
Companies are implementing the modality of teleworking through which workers carry out their functions from their homes, and thus do not stop the activities of the company.
When working under this modality, it is very important that workers are guided by the highest standards of responsibility and confidentiality.
Paul Rodríguez Medina
García & Bodán