Employers must grant a paid leave to employees who are parents or caretakers of underage kids who have been diagnosed with terminal diseases

On December 30^th of 2021, the Congress issued Law 2174 of 2021 in which it was stablished that in those cases in which an employee is the mother, father or caretaker of an underage kid who has been diagnosed with a terminal disease, they will be entitled to get a paid leave equivalent to 10 working days per year, that can be taken continuously or discontinuously according to what employer and employee mutually agree.

According to the content of Law 2174 of 2021, below we highlight the most relevant aspects:

• These dispositions apply to employees of the private and public sector.
• In order to determine if the minor complies with the characteristics to be catalogued as someone who is diagnosed with a terminal disease, it is necessary to take into account the parameters stated on article 2 of Law 1733 of 2014, which defines as terminally ill those people who comply with the following elements:

1. Bearer of a severe illness that has been diagnosed by a health professional as progressive and irreversible.
2. Disease with immediate fatal prognostic or that will be fatal in a relatively short time.
3. The illness does not have a curative treatment which efficiency has been duly proven.
4. When the therapeutical resources that have been used had stopped being efficient.

• In order to be entitled to getting this leave it is necessary to have a sick leave certificate issued by the health professional that has been treating the minor in charge of the employee, this document must contain the clinical diagnosis of a terminal disease and the necessity of the underage kid to be assisted.
• It is important to clarify that the fact that this leave is granted to one of the parents, does not exclude the possibility that the other parent gets it, as long as they are not taken at the same time, given that fact that the goal of this Law is to guarantee that one of the parents can provide the care and assistance of the minor, which means that it would not make any sense that both parents took the leave at the same time.
• It is stablished that despite of the recognition of this leave, the employees who are parents or caretakers of a minor with a terminal disease, can request their employer to allow them to develop their work tasks through home office, as long as the nature of the job allow that the functions are performed through this work modality.
• The payment of this leave will be in charge of the EPS (Health Promotion Entity) in which the employee who received the leave is affiliated.

It is relevant to mention that before the submission of this Law, in those cases in which the parents required to be temporarily absent from their job due to the necessity to take care of their sick children, Employers could grant leaves due to “domestic calamity” which meant that in regards to the lack of an express regulation for these specific cases,  there was no obligation for the employer to grant a specific number of days of leave, and therefore the duration of the leave was determined by the employer in accordance to the elements of each case.

On the other hand, it is important to clarify that despite the fact that part of the wording of the Law refers to the existence of a mutual agreement signed between the employee and the employer in regards to the granting of the days of leave, it must be taken into account that due to the fact that article 4 of the Law states that a new item must be included to article 57 of Colombian Labour Statute in which it is stablished that employers are obligated to grant a 10 working days leave for the care of sick children to those employees who comply with the requirements to be entitled to it, it is clear that despite the possibility of signing agreements in which the parties determine the dates in which the leaves will take place, its granting is legally mandatory, which means that in case an employer refused to grant it, there could be possible claims for noncompliance of labour obligations.

Finally, we must highlight that according to article 6 of the aforementioned Law, the Government through the Ministries of Health and Labour must regulate the dispositions stated on the analyzed Law, which means that this regulation will allow to clear doubts or explain aspects that are not that clear at the moment of applying them in practice. For example, in relation to the payment of the leave in charge of the EPS (Health Promotion Entity) it is not determined expressly if this Entity pays directly the leave to the employee, or if the employer pays it and after they are entitled to recover these amounts from the Health Entity.