Necessity and Urgency Decree No. 459/2020: extension of mandatory and preventive social insulation − Provincial authorizations for new exceptions.
Public Law Department Report | Necessity and Urgency Decree No. 459/2020: extension of mandatory and preventive social insulation − Provincial authorizations for new exceptions
Dear Sir or Madam,
Within the state of sanitary emergency currently in force, the President issued the Necessity and Urgency Decree No. 459/2020 – published on May 11, 2020- by means of which the extension of the mandatory and preventive social insulation and all other complementary regulations, until May 24, 2020, was set forth, along with a series of measures for focalized quarantine to be stated in accordance to local epidemiology.
Said Decree states Governors are entitled to determine new exceptions to the mandatory and preventive social insulation and the circulation prohibition, within certain locations or departments of their jurisdiction having less than 500,000 inhabitants. Said exceptions might be authorized only with previous authorization of provincial sanitary authorities and ordering the application of a specific functioning protocol that contemplates, at least, the fulfillment of national recommendations for sanity preservation. In all of the cases, the following requirements are to be fulfilled: (i) the timing for duplicating COVID-19 cases is no less than 15 days, (ii) the health system is capable of responding to the potential sanitary demand, (iii) the existence of a positive evaluation of local authorities regarding the social and sanitary risk related to the population density of the specific area, (iv) the percentage of people allowed to circulate does not exceed 75 % of the total population of the location or department, and (v) the department or location is not included within those considered as “with local or conglomerate transmission”. If any of these is not fulfilled, an exception is not to be allowed and said prohibition includes adjacent territories. For authorized exceptions, a protocol is to be previously developed following both national and local recommendations and is to be communicated to the National Ministry of Health.
In those jurisdictions of more than 500,000 inhabitants, excluding the Metropolitan Area of Buenos Aires, provincial Governors are only authorized to establish new exceptions when the protocol to be applied is included in those published as Annexes to Decree 450/2020 (“National Protocols”). In order to allow these exceptions, provincial authorities must have the previous approval of provincial health authorities, order compliance with the corresponding protocol, and communicate the desition to the National Ministry of Health. If the protocol corresponding to the activity to be authorized is not considered within the National Protocols, the Governor must request, in the first place, the intervention of provincial health authorities, and then, the authorization of the Chief Cabinet. Said request must be accompanied by a specific protocol following national instructions and recommendations. In order to authorize said activity, the Chief Cabinet must request intervention to the National Ministry of Health regarding the proposed protocol and check the fulfillment of all of the requirements established for jurisdictions with more than 500,000 inhabitants, with a duplication rate of confirmed COVID-19 cases of not less than 25 days.
Also, the Decree sets forth that if any of the epidemiology or sanitary indicators are not fulfilled by a specific location or urban conglomerate, no exception shall be authorized related to said jurisdiction and to its bordering areas. It is to be considered that exceptions can only be authorized if the employer transports its personnel without the use of public transport services.
Regarding the Metropolitan Area of the City of Buenos Aire –with the extension determined in said Decree- the Governor of the Province of Buenos Aires or the Mayor of the City of Buenos Aires are allowed to request the Chief Cabinet for the authorization of new exceptions regarding industrial, service or commercial activities with previous authorization of local health authorities and the indication of the protocols to be implemented. Adherence to National Protocols is allowed. If the requested activity does not have a National Protocol, the request must be accompanied by a proposed protocol that must contemplate, at least, the fulfillment of the recommendations and instructions issued by the National Ministry of Health. The Chief Cabinet is allowed both to authorize said activity and to reduce it to certain geographic areas.
Decree 459/2020 also establishes that authorizations will be granted only if the employer transports its employees with no use of the public transport services, specifically allowing the use of urban and suburban free offer transport, taxis, remis or similar transportations, these last vehicles must only transport one passenger at a time.
Regarding the control of epidemiology evolution, Decree 459/2020 sets forth joint activities between the Provinces, the City of Buenos Aires, and the National level. The first two must file before National authorities a weekly report. Noncompliance may lead to suspension of the allowed activities.
As per new activities, the Chief Cabinet maintains its power to include new exceptions as per the request of provincial authorities or the Mayor of the City of Buenos Aires, and new National Protocols.
Regarding the following activities, the only one allowed to establish authorizations is the Chief Cabinet, with the previous intervention of national health authorities and as per the request of the Governor or Mayor of the City of Buenos Aires: (i) in-person classes in all of the levels and in all of the modalities, (ii) public and private events that require the gathering of people, (iii) commercial centers, cinema, theaters, cultural centers, libraries, museums, restaurants, bars, gyms, clubs, and any other activity requiring the gathering of people, (iv) public interurban, inter-jurisdictional and international passenger transport, (v) touristic activities, the opening of parks or similar.
Please do not hesitate in coming back to us should you have any queries.
Juan A. Stupenengo