What Should You Do if Your Workers Have COVID-19?

Decree 1109 of 2020 established various measures that must be considered when following up on cases of workers infected with COVID-19 or who had contact with infected individuals. Additionally, “Sustainable Selective Isolation” was regulated, understood as the guarantee that workers have to remain in mandatory isolation, due to their diagnosis or suspicion of contagion with this virus, without their income being affected. In this regard, the Colombian Ministry of Labor recently specified[1] that treating physicians will be able to determine the need to grant medical leave to workers in consideration of the symptoms they have. In addition, physicians must consider whether or not workers have the possibility of carrying out their work remotely, through telework or work from home. Thus, in the event that workers can perform their functions under any of the aforementioned modalities and their health allows it, medical leave will not be necessary. On the contrary, if workers’ physical presence in the workplace is required, treating physicians must grant medical leave to allow them to comply with mandatory isolation.

In addition to the above, the Colombian Ministry of Labor established how to proceed with workers who belong to the Contributory Health Regime and the differences with those who belong to the Subsidized Health Regime, as follows:

  1. In the event that workers belonging to the Contributory Health Regime have medical leave: healthcare entities (EPS, by its Spanish acronym) or workers’ compensation administrators (ARL, by its Spanish acronym), will be responsible for recognizing payments to workers.
  2. In the event that workers belonging to the Contributory Health Regime do not obtain medical leave despite their diagnosis or suspicion of contagion with COVID-19: employers must allow workers to perform their duties through telework or work from home during the period that they must remain isolated, without their salary being affected. This measure is also applicable to those workers who, although the performance of their functions does not use information and communication technologies, can nonetheless perform them without requiring their physical presence in the workplace.
  3. In cases where workers belong to the Subsidized Health Regime: If workers have a confirmed diagnosis of COVID-19 and comply with mandatory isolation, they will be entitled to receive a temporary economic compensation that corresponds to seven (7) days of the Colombian daily minimum wage, for a single time. In this case, whether or not they have a medical leave is not taken into consideration, only whether they complied with mandatory isolation.

In addition to the above, the Colombian Ministry of Labor reminded employers that they have different tools to protect and preserve jobs during the health emergency that lasts until June 30th, such as: (i) work from home, (ii) telework, (iii) annual, anticipated, and collective paid vacation, (iv) paid leave, (v) salary without provision of services, and (vi) compensable paid leave.

For more information regarding this topic, do not hesitate to contact us.

[1] Ministry of Labor, response No. 2EE2021410600000061823.

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.