Implementation of Equity Impairment and Insolvency Risk Indicators

Recently, the Colombian Superintendence of Corporations referred to the obligation of implementing equity impairment and insolvency risk indicators in the analysis of companies’ financial information. In this regard, it recalled that, in accordance with the provisions of Law 2069 of 2020 and Decree 1378 of 2021, the directors of commercial companies have the obligation to monitor the financial statements, financial information and projections of the company. Likewise, they have the obligation to determine if the indicators established in the aforementioned Decree 1378 on equity impairment and insolvency risks are applicable to the company, in accordance with its business model and the commercial sector in which it develops its corporate purpose. If these indicators are applicable, they are of mandatory implementation and doing so demonstrates proper management by the corporate directors. Therefore, in the event that they are not implemented when there is an obligation to do so, it will be considered a breach of the directors’ duties, who may be liable for damages caused to the company, to partners or to third parties by said breach.

In addition, the superintendence established that, once these indicators are implemented and analyzed, the following conclusions can be reached: (i) that there is no equity impairment or insolvency risk, (ii) that there is both equity impairment and insolvency risk, (iii) that there is equity impairment but no insolvency risk, or (iv) that there is no equity impairment but there is risk of insolvency. Additionally, it specified that the implementation of these indicators is not a simple formality, since the results of the analysis must be shared with the company’s highest corporate body (shareholders’ assembly or meeting of partners). The foregoing, in order to allow it to clearly know the company’s situation and risks and to take the decisions it deems appropriate based on the information provided by the company’s directors.

If you have any questions regarding this matter, please contact us.

New Regulation for Work-From-Home Agreements in Colombia

On April 27, through Decree 649 of 2022, the Colombian Ministry of Labor regulated the procedure for authorizing work from home, understood as the occasional, temporary, and exceptional authorization given by employers to workers to perform their work from their home. This authorization is granted based on extraordinary circumstances that are expected to be overcome given time, which allows employers to accept that workers can perform their functions in a different location from their usual place of work, without this implying a modification or affectation to the rights and guarantees of workers or to the working conditions agreed upon at the beginning of the labor relationship. Thus, we explain bellow what the procedure for authorization is, as established in this new decree.

The authorization to work from home may be requested by workers, who must inform in writing, either by physical or digital means, of the occurrence of exceptional circumstances, attaching the evidence that accredits their occurrence, and asking for the authorization to carry out their duties from home. However, the mere submission of the application does not imply that employers must accept it, since it is not the worker’s right. On the other hand, the authorization to work from home may be implemented by employers regarding one or more of their workers because of the occurrence of these extraordinary situations, without the need of a prior request. In both cases, the decision to enable work from home must be made in writing, by means of a notice sent to workers, physically or digitally, in which they are informed of: (i) the occasional and exceptional situation that allows for the authorization of working from home to be granted; (ii) the term of this authorization, which may be a maximum of six (6) months, unless the circumstances that gave rise to the authorization persist, in which case it will remain in force until such circumstances disappear[1]; (iii) the duties that the worker must perform during the authorization; (iv) the means of communication through which employers and workers may report any updates, (v) the channels for complaints from workers so they may  submit their concerns or claims of infringement of their right to disconnect from work or of workplace harassment; (vi) the physical address from which workers will perform their duties, (vii) if there is an agreement for workers to use their own equipment for the performance of their duties, and if compensation will be paid or not, otherwise in case of a lack of agreement, it must be supplied by employers, indicating all the equipment and tools that will be delivered along with the liability regarding their custody and the procedure for the delivery and return of said tools, and (ix) the computer security measures workers must comply with. In addition, this decree also establishes new obligations, prior to the authorization for working from home, that employers must comply with, such as: (i) filling out the form provided by the workers’ compensation administrators (ARL, by its Spanish acronym), informing them about the authorization to work from home, the period for which the authorization will be granted and the physical address from which  workers will perform their tasks, (ii) having the necessary procedure to guarantee the right to disconnection from work, and (iii) training workers to ensure the proper use of information and communication technologies.

In case of receiving a request to authorize work from home, employers must respond in writing within a period not exceeding five (5) days and, take into account within the criteria to grant the authorization, in addition to the existence of exceptional circumstances, the possibility that workers’ duties can be performed outside the usual place of work without affecting the adequate provision of the service or workers’ productivity and whether the company has the necessary tools. Once the authorization to work from home is granted, employers must include work from home within their methodology to identify, evaluate, assess and control dangers and risks to workers and adopt all the necessary actions in the Annual Work Plan of the Occupational Health and Safety Management System (SG-SST, by its Spanish acronym). Likewise, employers must take the corresponding actions to protect and guarantee human dignity and workers’ rights.  When the period of authorization to work from home expires or the conditions that gave rise to this authorization are overcome, employers must inform workers, immediately, about the expiration and their return to the usual place of work.

Finally, bear in mind that the authorization to work from home includes the possibility of working from abroad with the prior authorization of the employer, who must report this situation to the ARL and take all necessary measures to ensure that workers are enrolled and protected by the Social Security System of Colombia. Additionally, there is also the possibility of implementing work from home under the alternation model, that is, employers may determine that some days of the week workers perform their duties in person at the usual place of work and other days from home.

In case you have doubts regarding these obligations or any labor issue, do not hesitate to contact us so that we can provide you with the counsel you need.

[1] Law 2088 of 2021, article 7.

New Regulation for Remote Work Contracts in Colombia

On April 9, through Decree 555 of 2022, the Colombian Ministry of Labor regulated the conditions that must be met by employers, workers and workers’ compensation administrators (ARL, by its Spanish acronym), for cases in which workers provide their services remotely. This type of work is known as remote work and is a form of performance of employment contracts in which information and communications technologies or similar means are used. In other words, employers and workers do not interact physically, since all the stages of the contract are performed virtually [1]. Therefore, companies that want to implement remote work must have a procedure that recognizes and respects the rights and guarantees of workers, as well as promote the appropriate use of information and communication technologies in a way that eliminates barriers that limit the performance of remote work. In this regard, this decree establishes new obligations for  remote employers, who must comply with  sending of a copy of the remote employment contract to the ARL along with: (i) the information of the place chosen for the provision of the service, (ii) any changes to this, (iii)  weekly work schedule, (iv) the occupational risk classification corresponding to the tasks to be performed and (v) the occupational risk classification corresponding to the company or workplace, as well as filling out the form required by the ARL. Additionally, the methodology to identify, evaluate, assess and control dangers and risks to workers of the company must include the category of remote work in order to adopt all necessary actions in the annual Work Plan of the Occupational Health and Safety Management System (SG-SST, by its Spanish acronym).

Likewise, employers must inform workers about the available means of communication to report any updates related to the performance of remote work, work accidents and occupational diseases. Similarly, every employer must order periodic medical evaluations to identify the health conditions of remote workers. Finally, employers must provide workers with safe work equipment and adequate means of protection, and virtually verify the health and safety conditions of the place where workers will perform their functions.

With respect to remote employment contracts, this decree establishes that they must contain the activities that workers must perform and the physical conditions of the workplace. In addition, the work tools that will be delivered to remote workers for the effective performance of their functions must be included in the contracts, as well as the liability for the custody of these items, the way in which these items will be delivered to and returned by workers, and the computer security measures that remote workers must know and comply with. Furthermore, the value of the assistance fee that employers must pay to compensate for the cost of energy, Internet and / or telephone services used in the provision of the services by the worker must be specified, which may not be lower than the value of the transportation aid established by the National Government. Employers and workers may also agree on a monthly compensation value for the use of work tools owned by the worker.

Moreover, employers may require remote workers, in exceptional circumstances, to attend the employer’s office or workplace in-person. These exceptional circumstances must be included in the employment contract. In addition, flexible schedules may be agreed upon by the parties and employers may implement corresponding technological mechanisms to ensure and verify the effective compliance with the schedule, without prejudice to workers’ right to disconnect from work.

In case you have doubts regarding these obligations or any labor issue, do not hesitate to contact us so that we can provide you with the legal counsel you need.

[1] Article 3rd, Law 2121 of 2021.