The Ministry of Labour issued Decree 1227 of 2022 in which new rules about teleworking and its different modalities are implemented

Even though teleworking has existed in Colombia for more than 14 years in accordance with Law 1221 of 2008 which was initially regulated by Decree 884 of 2012, because of COVID19 and the contingency measures that were adopted (which includes “home office” as a merely temporary and exceptional measure), many employers started to realize of the advantages of remote working, whether it is 100% remote or through a hybrid modality.

Therefore, and due to the fact that the termination of the declaration of sanitary emergency generates that it is not possible to continue with “home office” given its temporary and exceptional appliance, those employers who want to maintain a remote or hybrid scheme of work permanently, must implement teleworking.

Hence, in regards to the boom of this way of work, The Ministry of Labour issued Decree 1227 of 2022 which modified some dispositions stated on Decree 1072 of 2015 – General Work Sector Decree (which compilated some of the regulations stated originally on Decree 884 of 2012) and included new articles. 

Below, we highlight the most relevant aspects that must be considered in regards to these new regulations about Teleworking:

Changes:

a) Article 2.2.1.5.3 of Decree 1072 of 2015 was modified, stating the following formal requirements that must be included on the wording of contract or contract amendments in which teleworking is agreed:

1. Stablish the conditions for the performance of work activities such as technological tools, equipment, programs, responsibilities and restrictions related to cyber and digital security. Also, it is necessary to describe the minimum ergonomic requirements to develop work activities.
2. Mention the type of teleworking (such as supplementary, mobile or autonomous) and the applicable weekly work schedule.
3. Determine the responsibilities in regards to work tools custody and the procedure of return in case of termination of the teleworking or the employment relationship.

b) The obligation stated on article 2.2.1.5.5 of Decree 1072 of 2015 that stablished the obligation to include a teleworking chapter on the Internal Employee Handbook was eliminated.

c) Article 2.2.1.5.8 of Decree 1072 of 2015 was updated, stablishing the following employer obligations:

1. Fill out the form provided by the Occupational Hazard Administrator in order to inform the development of activities through teleworking (The Administrators are obligated to implement these forms).
2. Report to the Occupational Hazard Administrator the places in which the services will be provided in case of supplementary or autonomous teleworking. In case of mobile teleworking the conditions in which the activities will be executed must be informed. For any of the modalities, the weekly work schedule and type of occupational risk for both the Company and the specific task must be reported.
3. Include teleworking at the moment of designing the internal evaluation and assessment of dangers and risks in the workplace.
4. Socialize the mechanisms and communication channels for the report of news, occupational accidents or illnesses. 
5. Provide the necessary tools and equipment and inform about the possible risks that come from the use of informatic equipment. It is important to highlight that as it will be mentioned on the following items, it is still possible to agree that employees can allow that their own tools are at the disposal of the employer.
6. Guarantee the intimacy, privacy and right to disconnect according with Law 2191 of 2022.
7. Perform the correspondent occupational medical exams, being possible to execute them through telemedicine. 
8. Provide the correspondent training in regards to selfcare, importance of mental health, ergonomic and biomechanical risks, information security and other relevant aspects of teleworking, before starting to work on this modality. 

New Dispositions:

Article 2 of Decree 1227 of 2022 brought 11 new articles to Decree 1072 of 2015 which stablish the following main aspects:

a) Reversibility of teleworking: It is possible to expressly agree on the contract or amendment the possibility to ask at any moment to return to the execution of activities in a presential way. However, if teleworking was agreed since the beginning of the employment relationship, the employee cannot demand to work in a presential way, unless the parties have expressly agreed this possibility.

b) Implementation of internal teleworking policy: Despite the elimination of the obligation to have a teleworking chapter on the Internal Employee Handbook, now it is mandatory to have an internal teleworking policy that must be published virtually, and must contain the following:

1. List of the positions that can be performed through teleworking.
2. Postulation requirements to be a teleworker.
3. Dispositions to guarantee equal treatment.
4. List of equipment, programs, platforms, and IT environment that is necessary to being able to develop activities through teleworking.
5. Confidentiality conditions and protocols to respect intimacy.
6. Contacts and communication channels with the coexistence committee, health and safety committee, human resources in order to submit possible harassment in the workplace claims, or to report accidents, diseases or any relevant news or updates.
7. Dispositions about prevention, promotion and actions included on the training plans about teleworking.
8. General description of the required workspace: size, number of computers and other requirement for each position.

c) Equipment and work tools: Even though the employer is obliged to provide the necessary tools to telework, it is stated that it is possible that the employee puts his/her own equipment and tools at the disposal of the employer for the development of work activities, which means that this must be expressly stated on the contract, and also, it is necessary to stated an obligation for the employee to maintain the tools and equipment in good conditions for the adequate provision of services.

In case of force majeure situations (for example failure of electricity of internet because of the public service companies’ responsibility) or causes that were the employer´s fault, that generate that the employee cannot perform his/her duties, he/she must report if to the Company and therefore, cannot be subjected to disciplinary sanctions.

d)  Compensation allowances: It is important to highlight that there is no obligation to grant a determined sum as teleworking allowance or aid. Nevertheless, article 2.2.1.5.20 of Decree 1072 of 2015 states the possibility that the parties by mutual agreement stablish a monthly allowance that compensates the expenses of internet, phone services and energy, clarifying that there is not a fixed sum, and therefore, its value will be the one determined by the parties.

However, it is important to keep in mind that employees can still afford these costs without any type of compensation, as long as this is expressly agreed by the parties.

e) Hybrid work scheme: As we had mentioned on previous publications, in those cases in which an employer wants to implement a hybrid scheme, which means that some days will be worked in a presential way and the other through remote work, the applicable teleworking modality is the supplementary telework, which now is expressly stated on article 2.2.1.5.22 of Decree 1072 of 2015.

f) Registry of teleworkers: The employers must fill out digital form stablished by the Ministry of Labour to report the number of teleworkers (clarifying that the Ministry of Labour must design and implement this form with the support of the Ministry of Technology and Telecommunications).

Therefore, in case your Company wants to maintain a remote or hybrid work scheme permanently, it will be necessary to implement teleworking in the modality that applies in each case, considering the aforementioned aspects, waning that in case of non-compliance of these regulations, the Company could be subjected to possible fines by the Ministry of Labour in case of complaints or formal investigations.