The implementation of home office, which is formally regulated by Law 2088 of May 12 2021, has left some questions and doubts during 2020 and part of 2021, in relation to its application as a contingency measure to counteract the effects of covid-19 on the employment dynamics. However, for Colombian enterprises and companies comes an important task and challenge, in order to make assertive decisions in regards to the remote work modalities that will be implemented to maximize the human talent during these difficult times, in which it is expected to overcome the crisis and keep jobs.
It is important to mention that there are both differences and similarities between “Teleworking” which was implemented since 2008 and “Home Office” which despite the fact that had been briefly mentioned on Law 1221 of 2008, recently took off and went from being something merely exceptional to be considered as a general rule in regards to the ways services are performed.
Considering the fact that the information and communication technologies advance in a fast way and given the fact that because of remote work, employers have not only implemented home office during the covid-19 pandemic, but instead have the intention to carry on with this way of work, taking into account the good results in regards to the functioning of the Company, we consider it is necessary to show the relevant differences between both concepts, in order to guarantee that employers can identify the utility and convenience at the moment of choosing which one suits better for them according to their particular needs, taking into account the economic sector, the locations, the business activity, work schedules, type of work tasks among other determining factors.
Home Office, Teleworking or mixed work scheme, according to the particular needs of your company
On May 12, 2021, the Law 2088 of 2021 was issued, regulating in a formal way the concept of home office applicable on employment relationships in both the public and private sector. Therefore, it is necessary to keep in mind the differences between the new legal conception of “Home Office” and “Teleworking” regulated by Law 1221 of July 16, 2008, before hiring a new employee or deciding to send employees to perform their tasks remotely, in order to avoid the implementation of measures that do not adjust to the specific needs of each company or business, that may generate possible claims, sanctions or fines imposed by the Ministry of Labour of by Entities of the Social Security System.
Hence, we consider relevant to highlight the main differences between the modalities of remote work:
Teleworking Law 1221 of July 16, 2008 | Home Office Law 2088 of May 12, 2021 |
| It refers to the development of paid activities or the performance of services in favour of third parties, using the advantages given by information and communication technologies, without being limited in regards to the time this measure is implemented or applied. | - It refers to the possibility of a public officer or private sector employee to perform transitionally his/her tasks outside of the place in which they are usually developed, in regards to special and exceptional situations. - Objective causes: sanitary emergency because of the pandemic, public order situations, constructions, or adjustments in the workplace. |
- Voluntary agreement, in which the implementation of telework is formalized expressly in the employment contract for new employees, or though an annex or amendment to the initial contract for current employees. | - It applies on exceptional, special, or occasional circumstances in which the employee can work outside of the usual workplace, without changing the nature of the initial contract. Hence, there is not obligation to sign an agreement in which this measure is formalized, however, some employers have decided to sign documents with the employees in which the application of this temporary measure is stated, which is possible, but not mandatory. |
- Types of Teleworking: On the contract or agreement, it can be stablished different types or ways of teleworking that adjust to the needs of the employer and employee: - Autonomous: independent workers or employees that can develop their activities with support of technology in a determined place outside of the work office, which could be the teleworker´s home or another place defined previously by both parties. - Supplementary: Employees who have agreed to telework, stating an alternate system in which some days they attend the office and other days perform their activities outside of the workplace, using technologies. - Mobile: Employees with employment contract in which there is not a specific and defined workplace, and therefore use mobile dispositives to perform their tasks anywhere. | - The place of work will be the one stablished on the initial employment contract, however, transitionally, the employee can perform his/her activities outside of the workplace for an initial term of 3 months, that can be extended only once for 3 additional months, or until the objective special and exceptional causes that generated it are finished. It is important to clarify that this modality of remote work does not state certain kinds or types, as it happens with teleworking. |
| - For employees who earn a salary equivalent to two (2) minimum wages or less they are not entitled to receive the legal transportation allowance during teleworking, however, they are entitled to receive an undetermined sum of money destined to cost internet and communication expenses, which will not be considered as salary and must be stated in written agreement. The connectivity allowance stated for Home Office, has not yet been formally extended for teleworking. | - For employees who earn a salary equivalent to two (2) minimum wages or less and therefore receive legal transportation allowance, during the time they temporarily perform home office, they will receive this payment under the concept of “connectivity allowance” which must be taken into account at the moment of calculating legal premiums and annual severance allowance. |
| - The Internal Work Regulations must have a chapter dedicated to teleworking in case there are employees who perform their activities through this way of work. | - The exceptional performance of home office does not require to make adjustments or amendments to the Internal Work Regulations or the specifics functions manuals. |
| - The supply of work tools or equipment must be expressly stated as delivered at the moment the contract or agreement is signed. | - In regards to work tools, despite the fact that in principle the employer is obliged to supply them to the employee, it is allowed that the employee puts in disposition of the employer his/her own tools and implements for the performance of the work activities, as long as it has been expressly agreed by both parties. In case the employer delivers equipment or work tools, it is recommendable to request the employee to sign a document in signal of having received these elements. |
| - The Employer must send a report of the employees who will do teleworking to the Occupational Hazard Administrator, and additionally must send a copy of the teleworking contract or agreement to the Labour Inspector of the place in which the Company´s main office is registered. | - The Employer must report and update the information of the employee to the Occupational Hazard Administrator and inform the address in which the work activities will be developed, it is not required to make reports or send documents to the Ministry of Labour. |
| - In the guarantees stated on article 6 of Law 1221 of 2008 it is stablished that even though the regulations about work schedule do not apply, it is an obligation to guarantee that teleworkers won´t be subjected to excessive work tasks. | - The concept of “work disconnection” is stated, and it consists of the respect of the employee´s personal and family time and the adequate resting time, not being valid to give him/her instructions or orders outside of the work schedule (unless it is strictly necessary). |
- Given the fact that the appliance of this measure comes from a voluntary agreement between the parties, both the teleworker and the employer can agree in any moment the termination of telework and the return to presential work at the Company´s offices. | - Article 7 of Law 2088 of 2021 stablishes that the employer will be entitled to unilaterally determine the termination of temporary home office, nevertheless it states expressly a condition “as long as the occasional and special circumstances that generated the appliance of home office disappear” which in the practice may be confusing, given the fact that there could be cases in which employers despite the fact that the exceptional situations may continue (for example: the pandemic), they may require that because of their operational needs, some employees return to work in a presential way, and hence this “conditioning” may generate that some employees pretended to refuse going back to presential work, stating that the special circumstances had not disappeared. |
As it can be seen, taking into account the differences stated on Colombian Law in regards to the different kinds of remote work and considering the fact that there are aspects that still need to be regulated in a more detailed way, we can conclude that for some companies may be more convenient the implementation of telework, or on the contrary, it is more convenient to apply home office, a combination of both or also, a mixture of remote work and presential work. All of these considerations, under a previous analysis of the conditions and particular needs of each company and each business sector.
In the same order, it is important to keep in mind that these regulations are recent and new, and therefore, in the future some changes could come depending on the practical appliance of these dispositions and eventual conflicts of interpretation, in which case, we consider that it is not appropriate to conclude in a rushed way, that one of the modalities is more convenient than the other, given the fact that it will depend on the type of company and their specific needs.
Hence, even though both “home office” and “teleworking” have the goal to allow that the employee uses the information and communication technologies outside of the employer´s offices to develop their work activities remotely, evidently, they have different concepts and elements that will be applied on certain occasions, that depending on the specific needs of each company, it will be determined which one is more suitable and recommendable.
Therefore, we consider that in order to keep on applying remote work in an adequate way, the following aspects must be taken into account:
- Given the fact that during the sanitary emergency state decreed by the Government, the elements of exceptionality and temporarily are still valid and current, it is possible to keep on applying home office complying with the dispositions stated on Law 2088 of 2021: (i) connectivity allowance for employees who earn a salary equivalent to two minimum wages or less; (ii) agreement about work supplies and tools; (iii) report to the Occupational Hazard Administrator and (iv) guarantee of work disconnection and resting times. If once the sanitary emergency state is over, it is necessary and convenient that the employees keep on working remotely, we suggest to implement a pilot or trial plan in which it is allowed to analyse the management of the work activities, and in case once the allowed temporary period of 3 months stated on Law 2088 of 2021 (which can be extended for 3 additional months) finishes, the company considers that there is a permanency vocation for remote work, it will be necessary to evaluate the possibility to implement teleworking with its respective formalities.
- We suggest that despite the aforementioned dispositions, each company designs an internal policy and guidelines that contain the elements to identify the job positions and the work activities that shall be performed through remote work and its different modalities. Therefore, this will guarantee the development of good work practices and also mitigate eventual risks of sanctions.
Finally, we can conclude that the new ways of work that have brought a significant amount of possibilities, that were considered as something merely exceptional before, have allowed employees and employers to be more efficient and productive, without excluding the adequate balance of employment relationships and the due legal interpretation, that will guarantee the success of its implementation and permanence.
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