On June 15, 2022, the Labor Directorate ruled on the meaning and scope of Law No. 21.391, which establishes the modality of telecommuting or teleworking for the care of children and people with disabilities, making special mention to the application of such circumstance in relation to the adjustment of the school calendar determined by the health authority, by means of Opinion No. 1050/18. Specifically, this pronouncement states the following:

I. LAW N°21.391 AND INCORPORATION OF ARTICLE 206 BIS TO THE LABOR CODE.

1. Law N°21.391 consists of a single article (206 bis of the Labor Code), which establishes that, in the event that the authority declares a state of constitutional exception of catastrophe, due to public calamity, or a health alert on the occasion of an epidemic or pandemic due to a contagious disease, the employer shall be obliged to offer the modality of telecommuting or teleworking, without this implying a reduction in their remunerations, to the extent that the nature of their duties allow it and the workers consent to it.

2. The foregoing shall apply to dependents in the following situations:

(a) To the worker who has the personal care of at least one preschool child. If both parents are workers and have the personal care of a child, at the mother’s choice, she may make use of this prerogative.
b) A worker who has the personal care of at least one child under 12 years of age, who is affected by such circumstances and the authority adopts measures that imply the closing of basic education establishments or prevent attendance to them.
c) Workers who have in their care persons with disabilities.

II. ADAPTATION OF THE SCHOOL CALENDAR DETERMINED BY THE HEALTH AUTHORITY AND THE APPLICATION OF ARTICLE 206 BIS.

3. The Ministry of Health instructed the adjustment of the school calendar, bringing forward the starting date of the winter vacation and determining the suspension of classes for one week, in addition to such break.

4. The measure adopted is due to the fact that the period in which the seasonal peak of the circulation of other respiratory viruses, in addition to SARS CoV-2, has been brought forward in relation to previous years. In addition, epidemiological experience has shown that the pause in educational activities has been an effective measure for the decompression of the pediatric healthcare network.

5. In the opinion of the Labor Directorate, the instructions of the health authority and the reasons on which it is based, configure the assumptions provided for in Article 206 bis of the Labor Code, in which case the employer must offer the worker who has the personal care of at least one child under 12 years of age, who is affected by such circumstances, the modality of telecommuting or teleworking, to the extent that the nature of their duties would allow it.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl), Gonzalo Aravena (garavena@jdf.cl), and/or Felipe Ovalle (fovalle@jdf.cl).