On January 27, 2022, the Labor Department ruled on the authorization to take an antigen sample for Covid-19, by means of Ruling No. 167/01. Specifically, this statement indicates the following:

1. By virtue of the general duty of protection that the employer has to protect the life and health of workers, established in Article 184 of the Labor Code, the employer must grant the worker the facilities and permissions for the necessary and reasonable time during his working day so that he can go to take a sample of antigen for Covid-19 to a health center mandated by the health authority or other type of establishment, whether mobile or not, provided that the worker is in any of the hypotheses that may qualify him as a “person on Covid alert”.

2. In the event that the employer refuses to provide the necessary facilities and permissions for the worker to go to the Covid-19 antigen sample collection during his working day, this would constitute a violation of the provisions of Article 184 of the Labor Code.

3. Without prejudice to the general duty of protection provided for in Article 184 of the Labor Code, the permission to take the Covid-19 antigen sample is not a matter that is expressly regulated, a situation that will lead the parties to adhere to the provisions of the Internal Rules of Order, Hygiene and Safety; the individual or collective contract; or any other instrument where it is regulated.

4. In turn, in the event of a company in which this matter is not regulated, it will be up to the parties to the labor relationship to agree on the form, times and conditions in which the aforementioned leave will be granted, without this hindering the employee’s attendance to the Covid-19 antigen sample collection.

5. If the employer and the worker are unable to reach an agreement regarding the way in which the leave to go to the Covid-19 antigen sample collection will be materialized, the worker may still go to the medical examination, without this being qualified by the employer as an unjustified, untimely departure or as abandonment of work by the worker. The above, as long as the employee proves that he/she has taken the antigen test for Covid-19 with the corresponding voucher. According to the Labor Directorate, it would not be in accordance with the law to invoke such facts to terminate the employment contract for the aforementioned reasons, without prejudice to what the Courts of Justice may determine in each particular case.

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).