¿Is the interpretative provision for the fortuitous case or force majeure insufficient regarding the termination of the employment contract in the Organic Law of Humanitarian Support?

An analysis from Comparative Law on the occasion of Covid-19

Abstract

Within the several emerging measures issued in Ecuador, since the declaration of Covid-19 as a worldwide pandemic, there is an interpretative provision rule for fortuitous event and force majeure, in order to regulate its application regarding the termination of individual employment contracts, according to the recent entry into force of the Organic Law of Humanitarian Support. The interpretative provision establishes a single application parameter for this causal, based on a situation of absolute impossibility or definitive cessation of the productive activity of the employer. This article seeks to identify the main factual and legal assumptions that this provision has ignored, in comparison with those that have indeed been considered and developed in Ibero-American Comparative Law; assumptions that in essence, should also be inherent to said provision, which in conclusion will demonstrate that all the normative and regulatory shortcomings have not been sufficiently solved by said Humanitarian Support Law. Finally, this article will attempt to demonstrate the need to incorporate the theories of subjective and objective civil liability, regarding the imputability of the employer in the determinative equation of the factual and legal assumptions of the causal in reference. All of which, becoming even more necessary, due to the increasing number of contractual terminations and dismissals, in the midst of a critical situation such as the current pandemic.