#CostaRica 🇨🇷 #ArticlesBDS: Major considerations to avoid discrimination at work
Our Labor Code (LC) has always included provisions intended to protect and avoid discrimination...
Since the declaration of the state of emergency as a result of the impact of COVID-19 on March 16, the government implemented a series of measures to support employers in the private sector so that they could face this situation and thus preserve their jobs.
By virtue of the foregoing, many employers resorted to the collective suspension of employment contracts and the reduction of working hours as alternative measures to avoid dismissals. Collective suspension of employment contracts is a possibility regulated in articles 73, 74, and 75 of the Labor Code, which states, as its name implies, the suspension of the employment relationship for reasons beyond the control of both parties, without termination of the employment contract.
Specifically, Article 74 establishes the grounds for which an employer could suspend employment contracts (the worker stops providing services, and consequently, the payment of wages is suspended).
Specifically, Article 74 establishes the grounds for which an employer could suspend employment contracts (the worker stops providing services, and consequently, the payment of wages is suspended).
Among grounds for this, the following are established:
1. "The lack of raw materials to carry out the work, provided that it is not attributable to the employer;
2. Force majeure or act of God, when it is required to suspend working activities as a necessary, immediate, and direct consequence therefrom; and
3. The death or disability of the employer, when it is required to suspend working activities as a necessary, immediate, and direct consequence therefrom."
As a result of the current pandemic, the Ministry of Labor has considered that this can be classified as "force majeure or act of God", provided that the continuity of work is impossible.1. "The lack of raw materials to carry out the work, provided that it is not attributable to the employer;
2. Force majeure or act of God, when it is required to suspend working activities as a necessary, immediate, and direct consequence therefrom; and
3. The death or disability of the employer, when it is required to suspend working activities as a necessary, immediate, and direct consequence therefrom."
In order to regulate the procedure for requesting the suspension of employment contracts before the Ministry of Labor, the Executive Power issued Decree No. 42522-MTSS, which was published in the Official Gazette on March 20, 2020.
This decree did not include any guidelines regarding pregnant or breastfeeding workers; however, article 6 of the law authorizing the reduction of working hours in light of the declaration of national emergency (Act No. 9832), which was published on March 23, 2020, expressly established the protection for these workers by stating the following:
“ARTICLE 6- Protection privileges and gender equality measures - The reduction of work shifts and the suspension of employment contracts shall not apply to pregnant or breastfeeding workers. In cases of qualified persons, the reduction of working hours shall only proceed when it is established for at least ninety percent (90%) of the company's staff.
In no case may the reduction of the work shifts be used for discriminatory purposes or as a measure or retaliation to the detriment of workers. In case of a reduction in work shifts that does not affect all employment contracts of a company, the measure shall be applied proportionally in consideration of the gender composition of its payroll, with respect to the same or equivalent positions."
In no case may the reduction of the work shifts be used for discriminatory purposes or as a measure or retaliation to the detriment of workers. In case of a reduction in work shifts that does not affect all employment contracts of a company, the measure shall be applied proportionally in consideration of the gender composition of its payroll, with respect to the same or equivalent positions."
Subsequently, the amendment and addition to Decree No. 42248-MTSS was published in the Official Gazette on August 12, 2020, whereby by adding article 2 bis, it was expressly established that any workers referred to in article 6 of Act No. 9832 must be excluded from the implementation of the aforementioned measure.
Based on the foregoing, we can answer with certainty the initial question by stating that it is not legal to temporarily suspend employment contracts or reduce working hours of pregnant or breastfeeding workers.
Furthermore, it is important to remember that to enjoy this protection, pregnant or breastfeeding workers must notify the employer on their status, providing medical certification or proof of their condition issued by the Costa Rican Social Security Administration, as established in article 94 of the Labor Code.
Finally, it is important that the employer correctly identifies any workers who are covered by this provision in order to meet the requirements of these measures, as well as to prevent any infringement thereof.
By our lawyer: Fiorella Obando / fobando@bdsasesores.com
By our lawyer: Fiorella Obando / fobando@bdsasesores.com