Colombia's Ministry of Work has adopted employment protection measures due to the Covid-19 contention phase and the health emergency declaration. These measures include work from home, telework, flexible working hours, advance, annual and collective vacation, and paid leaves.
Colombia's Ministry of Work has issued Circular Letter No. 21 adopting employment protection measures due to the contention phase of Covid-19 and the declaration of a health emergency. Through this circular, the Ministry establishes the following mechanisms:
1. Work from home: Since it is an occasional, temporary, and exceptional situation, employers may authorize work from home in any sector of the economy. This temporary work from home is considered to be different from telework, and as such does not require the fulfilment of the conditions established for teleworking. For the adoption of a work from home arrangement, an agreement between the employer and the employee must exist.
2. Telework: The Ministry of Work deems telework a valid measure, outlining the legal requirements to be fulfilled for this to take place.
3. Flexible working hours: The Ministry of Work mentions flexible working hours as well as flexible shifts as measures to counteract Covid-19, concluding that employers can modify their employees' working hours with the aim of protecting them. They can do this by shortening working days or setting successive work shifts that avoid the clustering of employees in the workplace at the same time or within the public transit system.
4. Accumulated, advance, and collective vacation: According to the ministry, employees and employers can agree at any time to use accumulated, advance, or collective vacation to counteract the risk phase of Covid-19.
For this purpose, the Ministry of Work has clarified the following aspects:
- Vacation may be granted to employees before the right has accrued (i.e. advance vacation).
- Employers can set collective vacation for their employees, even
if they have not completed a year of service, in which case the
following must be taken into account:
- Vacation pay must be equivalent to the salary earned at the beginning of the vacation period.
- The employee cannot request the assignment of a new vacation period after he or she has completed a year of work.
- The employer can notify employees of collective vacation in order to offset production or income losses, as situations arise from the health emergency, or in the event that mandatory isolation measures are ordered by the national government as a mitigation strategy for Covid-19.
5. Paid leaves: Pursuant to the provisions of the labour code, employers must grant leave in the event of a serious domestic calamity.
6. Salary without service: Pursuant to the labour code, employees are entitled to receive their salaries even though no work is provided, if this situation is due to the employer's fault or decision. According to the ministry, the employer may voluntarily elect to pay an employee his or her salary, while releasing him or her from providing services.
These measures do not release the employer from complying with its obligations – in particular, the payment of wages, contributions to the social security system, and all others arising from the employment relationship.
The Ministry of Work also issued Circular No. 22 announcing a rigorous process in which strict measures of inspection, surveillance, and control will be carried out on employers regarding the termination of employment contracts and employee income reductions during the emergency phase.
In the same vein, the Ministry announced as of 29 March 2020 that it will begin inspection, surveillance, and control over companies forcing their workers to accept unpaid leaves, as it is a violation of labour rights and does not serve the intended legal purpose.
Finally, on 27 March 2020, the Ministry of Work adopted measures to promote job retention and provide alternatives to employees and employers during the national emergency, as follows:
- Withdrawal of unemployment savings for employees who have had decreases in their monthly incomes, applicable to the Private Pension and Unemployment Saving Aid funds (but excluding the National Savings Fund).
- Vacation notification: Employees may request vacation one day in advance. Employers may grant employees accumulated, advance, or collective vacation, notifying them one day in advance.
- Benefits related to the Unemployed Protection Mechanism (for termination of employment), including transfer of two months' wages divided into three equal monthly instalments, to be paid during the emergency and, in any case, for a maximum term of three months.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
