Effects of Isolation by Covid – 19 on the Legal Employment Relationship

The spread of COVID -19 at the national level has increased every day, in this sense, in the field of social protection, the Government has been establishing a set of measures that favor the maintenance of jobs and guarantee the income of families.

Prophylactic Isolation

Quarantine and isolation are essential social distancing measures in public health. They are especially used in response to an epidemic and are intended to protect the population from transmission between people.

It stipulates paragraph 1 of article 3 of Decree-Law no. 37/2020, of 31 March (establishes exceptional and temporary measures in terms of social protection and approves fiscal and parafiscal measures and human resources management of response to the new SARS-CoV-2, which causes the disease COVID-19) that “To workers placed in a situation of prophylactic isolation for 14 days, motivated by situations of serious risk to public health arising from the new Coronavirus-COVID-19, decreed by the health authorities, within the scope of the exercise of their powers, the right to receive a subsidy corresponding to 70% of the reference remuneration is guaranteed”. (our bold)

The declaration of Prophylactic Isolation must be issued by the competent authorities, thus replacing the Certificate of Temporary Inability to Work, for the purposes of delivery to the services of the managing entity of the mandatory social protection system, in accordance with n. º 3 of article 3 of Decree-Law No. 37/2020, of 31 March.

How is the declaration of the Prophylactic Isolation situation issued?

The declaration is issued by the Health Authority (also known as the Health Delegate) to each worker who must be in prophylactic isolation.

How is the process triggered so that a person has to be in prophylactic isolation?

The process must always be initiated by the competent Health Authority, with jurisdiction in the person’s area of official residence.

Who sends the statement? And where?

The worker must send his declaration of prophylactic isolation to his employer, which must send it to the INPS.

Is the Health Authority declaration a sick leave?

No. The statement attesting the need for isolation replaces the document justifying absence from work for the purposes of justifying absences and granting the allowance equivalent to sickness, for a maximum period of 14 days of prophylactic isolation.

How is the prophylactic isolation subsidy payment processed?

The prophylactic isolation allowance is paid in the same way as the sickness allowance that we will explain below.

If prophylactic isolation is decreed, but there are conditions to work in a telecommuting regime, is there a right to the allowance equivalent to the sickness allowance?

No. In this case, as you continue to work, you will receive your usual remuneration, paid by the employer.

Sick worker

Are those who contract the Covid – 19 virus entitled to receive any benefit from Social Security?

Yes. If you have a certificate of temporary incapacity for work (the “sick leave”).

What is the amount of subsidy you receive if you contract the disease?

The paragraphs of article 211 of the Labor Code determines that “In a situation of illness, workers are entitled to receive from the employer: a) The difference between the net remuneration to which they would be entitled during the absence period and the amount of the subsidy granted by Providência Social in the first 90 days of each impediment, without prejudice to the provisions of the following paragraph; b) The net remuneration in the first 3 days of each impediment, comprised within the 90 days referred to in the previous paragraph”.

Paragraph 2 of the same article adds that “The provisions of subparagraph b) of paragraph 1 only apply up to 15 days per calendar year”.

It complements paragraph 1 of article 49 of Decree-Law no. 50/2009, of 30 November (Changes some articles of Decree-Law no. 5/2004, of 16 February in its original wording given by Decree-Law No. 51/2005, of 25 July) that “The daily amount of the cash sickness allowance is equal to 70% of the beneficiary’s reference remuneratio…”.

Thus, knowing that the INPS grants a cash sickness allowance of 70%, the employer must pay the remaining 30%, that is, during the 90 days of the employee’s illness, the employer must pay a remuneration of 30% of the net remuneration. In the first 3 days of the employee’s illness, the employer must pay a remuneration referring to the employee’s net totality.

Note that during the period of suspension due to illness, the INPS fee is not due, either the fee paid by the employee or the fee paid by the company.

Only the IRPS must be paid, and the company is responsible for withholding the IRPS in its entirety (100% of the remuneration).

If the worker is in prophylactic isolation but contracts illness before the 14-day deadline?

Whenever it is found that the person has become ill, and a certificate of temporary incapacity is issued, this replaces the declaration of prophylactic isolation and the law in force applies.