Can an employee exercise their right to not work?

It seems difficult in view of the measures taken by the government for an employee to invoke their right to not work unless the employer is endangering the health of their employee by refusing to apply the governmental measures, such as by asking an employee to continue working at a hairdressers when that type of trade cannot continue its business.

At present, most of the businesses authorised to continue operating (e.g. food stores) have taken necessary measures to ensure the safety and preserve the health of their employees (providing protection around cashiers, providing gloves, masks and hand sanitisers, etc.).

If an employer complies with all these obligations and implements adequate preventive measures, the Ministry of Employment believes that exercise of the right to not work is not justified, subject to a sovereign assessment by the trial courts. It should be noted that for the H1N1 influenza, a circular stated that the right to not work covered a particular working situation and not a general pandemic situation. For this reason, the existence of an influenza pandemic is not sufficient, in itself, to justify exercise of the right to not work, if an employer has implemented all the measures stipulated in the Employment Code and in national recommendations to protect the health of workers (DGT Circ.2009/16, 3 July2009).

 

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