One of the major legal discussions generated by the global Covid-19 pandemic in labor law has been about the practical implications of remote working. The above is curious if we analyze that since Law 1221 of 2008 the figures of teleworking in its various forms and working at home were already enshrined, but only until this time, when we were forced to use them, concerns, questions and legislative gaps were expressed about the conditions of implementation, the occasional or permanent nature of these measures, the establishment of prevention mechanisms of occupational risks and the coverage offered by the General Social Security System, just to mention a few issues.
In addition, the situation that the world is going through makes it clear that the possibility of performing labor activities using Information and Communication Technologies - ICTs -, together with the particular circumstance of some employees who do not have to remain in a single geographic location, have become a great advantage.
Indeed, it should not be ignored that, in front of the restrictions imposed by governments on the people free movement, and by the fact of working from home or working from a family places, personal and work aspects must be reconciled to a greater extent in order to achieve a balance. For this reason, many employees have even preferred to continue the execution of their labor contracts from abroad.
Notwithstanding the above, it is clear that the implementation of remote working has raised doubts for employers, particularly related to the formalization of the execution of labor activities abroad, the temporality of the measure, the exercise of the power of subordination and the coverage of the General Health System and the Labor Risk System when an event occurs abroad.
In this regard, although many practical aspects related to this matter are not expressly established by labor legislation and there are not unanimous positions on the matter, the following are some legal recommendations for the proper handling of these circumstances of remote work from abroad:
- Firstly, it is necessary to clarify that the change of the place of performance of work activities constitutes a modification of labor conditions, which, in the terms of the provisions of Article 50 of the Colombian Labor Code, must be formalized by means of an additional clause to the labor contract, signed by both parties to the labor relationship, as a sign of knowledge and acceptance.
- Secondly, it should be noted that the implementation of remote work from abroad, regardless of whether it comes from the express and voluntary request of the employee or from a provision of the employer for reasons of service provision, does not limit in any way the exercise of the power of subordination by the employer. Therefore, the employer shall retain the right to issue orders and instructions regarding the work assigned, as well as to provide, at the time it deems appropriate, that the labor activities must be carried out again within the national territory. However, at this point it should be noted that in the event that it is the employee who requests the authorization to perform his/her work activities from another country, he/she may only do so with the endorsement by the employer, and considering that by the provisions of Article 57 of the Colombian Labor Code, not being an imposition of the employer that involves a change of residence, the company will not be obliged to assume the travel expenses of the person or his/her family members.
- In relation to the coverage of the General Health System in the event of contingencies of common origin, although the employer must continue to pay contributions to the system due to the existence of the labor relationship, the recognition of assistance benefits presents an evident territorial limitation with respect to the services provided by the EPS located in Colombia. Therefore, in the case of events of common origin, it is advisable that the employee declares that he/she is exclusively responsible for assuming the costs of eventual events that may occur, and that in the case of common accidents or illnesses, he/she should try to acquire an international health insurance policy during his/her stay abroad. It should be clarified that it may also be an employer decision to require the employee to take out an international health insurance policy to guarantee, in a real and effective manner, health care in the event of a situation of common origin that arises abroad, exonerating and releasing the employer from any liability that escapes from the territorial contractual obligations.
- On the other side, with respect to the Labor Risks System, it should be noted that the jurisprudence has accepted the relative application of the principle of territoriality of labor legislation. Thus, even if the labor activities are performed abroad, if the power of subordination continues to be exercised from Colombia, the ARLs must offer coverage on the occupational accidents and diseases occurring abroad. Nevertheless, it is necessary, and is a legal requirement, that the employer gives timely notice of the change of the place of performance of the work to the ARL and indicates the estimated time of permanence of the employee in another country, in order to avoid controversies and the need to file additional claims for the recognition of benefits, mainly economic benefits.
- Finally, in accordance with the provisions of the Decree 1072 of 2015 and the recommendations of the Colombian Ministry of Labor on the matter, in terms of occupational risks prevention, the employer shall include all employees regardless of their geographical location, in the performance of all activities related to occupational health and safety. In addition, the employee will also be obliged to take care of his/her health and to observe all the preventive measures prescribed, for example, by attending scheduled training sessions and promptly reporting the appearance of Covid-19 symptoms or of infected persons in close proximity.
The new world of borderless remote work will bring us new challenges. The search for and application of appropriate legal schemes adapted to these new realities constitute the permanent challenges that we, as experts in the field, must face every day.