Wrong move or LatAm pioneers? Chile’s controversial carnet de alta
Chile is the only country in the world pressing ahead with plans to issue carnets de alta – release cards – for individuals who have recovered after contracting coronavirus. The logic behind the cards is to enable staff who have had covid-19 to return to work quickly to help restart the economy. But companies must tread carefully, with the legal implications surrounding the use of the cards leaving lawyers divided over their effectiveness.
“It is very important, and I want to reiterate, that we have not talked about an immunity card,” said the sub-secretary of Chile’s Ministry of Health, Paula Daza, on 26 April.
The Chilean government is defending its plans to issue carnets de alta – release cards – for people who have contracted covid-19 and subsequently recovered. The cards are designed to indicate an employee is no longer infectious. It is thought that these cards could be a gateway to the private sector resuming activities and getting back to business as normal. For sectors in which working from home is not a viable option for many workers – including retail and mining – this “proof” of recovery could help workers safely return to work more quickly.
But it is important to note that the carnet de alta does not constitute any proof of immunity – the World Health Organisation (WHO) has stressed that there is no scientific proof that someone who recovers from covid-19 is then immune to it.
Chile’s move to introduce recovery cards has been met with widespread criticism across the world. Many argue – citing WHO advice – that the card could give people false hope, which could lead people and companies to relax their hygiene standards because they falsely think they are not at risk. “The cards do not exempt employers from not fully complying with all health and safety protocols to avoid new infection cases among all employees, including those recovered [from covid-19],” says DLA Piper (Chile) partner Luis Parada. “The authorities have to be clear on that point.”
The utilitarian approach
Despite the criticism, Chile is continuing with its plans to introduce the carnets this week. It is understood that only medical professionals will be able to issue them to patients who are tested for, and have recovered from, the virus. It is also understood that there won’t be a law that requires employees who have had covid-19 to register for release cards; this will be optional.
While companies won’t be able to force employees to obtain these cards by law, their duty to protect the health and safety of employees – which all employers are obliged to do under Chilean labour law – might be enough grounds to justify businesses asking employees to get the cards. Companies must weigh up the pros and cons: since they are not enforced by law, it is up to individual businesses to decide whether or not to ask employees who have suffered from covid-19 to get them.
Some recognise the benefits of using the carnets. “The cards could be useful as a tool to gain certainty of the health status of an employee,” says Prieto partner Cristóbal Raby. “Employers have a general obligation to protect the health of their employees, so any additional tools will be considered.”
Employers are usually prohibited from asking employees to disclose medical conditions – or risk being sued for discrimination. But considering the highly infectious nature of covid-19, requiring employees to obtain these cards if they have admitted to contracting covid-19 might be considered a necessary step to maintain the health and safety of the entire workforce. This utilitarian approach – to ensure a safe environment for all employees – is a reasonable interpretation of a company’s general duty to care for employees. “The goal is to provide all measures to guarantee a safe work environment, and this is a reasonable measure to that end,” says Guerrero Olivos partner Rocío García de la Pastora.
At companies that do ask for these recovery cards, legal teams will have to carry out thorough checks to ensure cards employees present are legitimate. “The cards must be official documents that have been developed and issued by the relevant competent health authorities,” says Bofill Mir & Alvarez Jana Abogados partner Pablo Gutiérrez. “They have to be valid for reporting that an employee can resume their activities.”
Knowing the limits
Like most things in life, there are possible complications. The effectiveness of the cards relies on employees voluntarily disclosing to their employer that they have had the virus – which they are not obliged to do by law. Prieto’s Raby highlights the delicate nature of the situation when an employee chooses not to disclose any medical history, even if it is covid-19 related. “The diagnosis of an employee who takes medical leave is confidential, so the employer could not ask employees to get these cards if they do not voluntarily tell their employer about testing positive for covid-19,” he explains. “I think employers requesting employees to get this card will be limited.”
There is no law that requires employees who have had covid-19 to register for release cards. If staff members who have taken sick leave decide not to register, companies will be limited in their options. Any company found to be forcing its employees to obtain these cards on unreasonable grounds could be liable for a breach of constitutional rights. “The privacy of the employee and all their medical data is protected by our constitution, so any violation of these rights could be sanctioned by the labour authorities or courts,” says Prieto’s Raby.
The aim of the card is to distinguish which employees are infectious and which are not. There is a case, therefore, for companies that choose to use them to circumvent certain legal issues that might arise if they do not use these cards. A company that cannot distinguish which employees are infectious and which aren’t may ask their workforce to remain at home longer than is necessary. Such companies may run into legal opposition from recovered workers who may claim breach of contract. “An employer refusing or not permitting an employee to return to work after medical leave is over could be deemed as a violation of a company’s obligation to provide the agreed work [for employees] and puts the company at risk of, among other things, a claim for constructive discharge,” says Carey partner Oscar Aitken.
The delicate issue of data privacy
Data privacy comes into play here, because employees may claim that they should not have to disclose their medical records to their employer. Chile’s 1999 Protection of Private Life Law governs the processing of personal data of individuals and requires employers (or any data controller holding their personal information) to provide information to the data subject (employees fall in this category) on the data’s source, the purpose of storing the data and the list of persons who have access to this data.
Therefore, asking employees for their permission to process the health data provided on these cards is paramount to comply with these data privacy regulations, says Carey’s Aitken. The legal team and data privacy department must ensure steps are in place to safeguard employees’ medical data and keep any information disclosed to these teams confidential, too. That means investing sufficiently in cybersecurity processes to comply with data protection standards enshrined in Chilean law.
If companies ask for this information, legal teams must decide if they have a strong case they can present to authorities should they be questioned on their decision to ask employees to obtain recovery cards. The main question, which remains unanswered, is what employers can do if an employee refuses to cooperate. With no law dictating what employers can demand of employees in these uncharted territories, legal teams must consider whether their company can ensure the necessary data protection measures – and the additional costs that processing private data gives to employers – can be met.
Some argue that the unprecedented nature of the current public health crisis makes such requests justifiable. “In my view, at this point of the pandemic a company does not have any other alternative to prevent infection besides asking the employee to get a test – at the company’s cost – or to show a discharge card. Any privacy concern should be weighed with the obligation to secure the health of the rest of the company,” says DLA Piper’s Parada.
Other factors to consider
Companies that are hiring will also have to tread very carefully. If they make possession of a release card a requirement for hire, this could be the basis of a discrimination claim against the business. With few companies hiring right now, this will be more of a potential concern in the coming months, when businesses start to go back to normal as lockdowns are lifted.
Under the Chilean constitution, individuals cannot be discriminated against on any grounds for work other than their capacity for the role. As only those who have tested positive for the virus can subsequently obtain a recovery card, possession of such a card would presumably be an unjustifiable – and discriminatory – requirement. On the other hand, if a company hires someone who turned out to be infectious, other employees may claim their employer created an unsafe and unhealthy environment for them to work in. Companies are trapped between a rock and a hard place, it would seem.
But what seems clear is that if a company does decide to use recovery cards, in no way are they to be used as a free pass to slack on vital health and safety measures. The government has enforced various measures to protect citizens, and these enhanced public sanitation measures will remain for the foreseeable future given that Chile is far from its peak of infections.
The card does not constitute immunity, and companies have to remain fully compliant with government-endorsed sanitation measures to ensure the health and safety of their entire workforce. Taking a multifaceted approach stands a company in a good position to survive this pandemic. “Employers have an obligation towards all employees to maintain a healthy working environment, and these “recovery cards” go exactly in that direction, along with complying with the protocols for workspace disinfection and infection case handling,” says DLA Piper’s Parada.