Draft bill 19.

Summary.

The draft bill adds provisions to Law 59 of December 28, 2005, which provides employment protection for people with chronic, involutive and/or degenerative diseases that cause work disability. A worker invoking that protection would have to notify the employer, human resources or an equivalent office in writing within a reasonable period after learning of the diagnosis or its significant effect on work. The worker may submit initial medical documents; the absence of an initial certificate would not prevent provisional protective and assessment measures. The employer would have to acknowledge receipt, keep medical information confidential and open a follow-up file separate from the ordinary performance record.

Within fifteen working days after receiving the notice or relevant medical documents, the employer would have to assess whether the worker’s duties are compatible with the certified condition. The assessment would cover possible temporary measures concerning targets, indicators, assessment periods and methods, work arrangements, task allocation, operational requirements and variable pay. Its outcome would have to be recorded in writing, specifying the measures, duration, applicable criteria, treatment of variable pay and a review date no later than ninety calendar days, unless the medical treatment warrants a different period. During the protected period, the worker would have to report relevant medical developments, provide pertinent documents, cooperate with the measures and perform essential duties insofar as possible within the adopted adjustments.

For positions with commissions, bonuses, incentives or other variable components, the employer would have to consider the nature of the position, the medical condition’s effect, treatment or recovery, and the share of those components in total pay. Where a valid certificate establishes a direct effect on results, the employer would have to consider temporary, proportionate and reviewable adjustments to targets and assessment criteria without removing essential duties. Each measure would require a written record of its basis, application period and review date. Without that record, the employer would be presumed, unless proven otherwise, not to have conducted a reasonable assessment.

A decline in productivity directly associated with the certified condition could not, on its own, be used to reduce variable pay disproportionately, disregard the condition in a performance assessment, justify discrimination or pressure the worker to leave. Before taking an adverse action related to performance, an employer would have to examine and document compatible alternatives where the worker’s income depends substantially on variable pay. Certain employer omissions would give rise to a rebuttable presumption that the duty of protection was breached. While the initial assessment or certification remains pending, adverse actions based solely on affected performance would be restricted, except for a separate, documented objective cause.

The Executive Branch (Órgano Ejecutivo) would establish application criteria and regulate the law within no more than 60 days after promulgation. The text provides for effect from promulgation. Its provisions could concern public and private employers, protected workers, human resources offices and sectors that use variable pay.