As a result of the COVID-19 pandemic, the declaration of a Health Emergency that will last until 30 May, and the social, economic and ecological State of Emergency, which lasted until 15 April, the Colombian government has issued a series of administrative acts that impact labour relationships both directly and indirectly.
Thus, within this context, the following article outlines answers to the most common questions regarding the emergency surrounding COVID-19 in Colombia.
1. Is an employer under any obligation to implement preventative measures in its operations regarding COVID-19?
Yes, the employer – within the duty of protection that is intrinsic to the employment contract – is obliged to safeguard the health of employees and to take all preventive measures within their reach to counter the spread of COVID-19 in Colombia. Thus, employers have an obligation to communicate with workers on ways to prevent the spread of COVID-19 and to adopt on-site sanitary measures recommended by the Occupational Health and Safety Management System (SGSST) and Labour Hazards Insurance Companies (ARL), which are advising companies on the virus.
The following are the minimum measures that enterprises must take for workers operating at jobsites:
- Frequent hand washing with soap and water, as well as alcohol-based sanitizer.
- The proper use of working tools: their cleaning and rules prohibiting the sharing of tools.
- The employer must provide preventative equipment (e.g. masks, gloves, etc.) to employees.
- The availability of water for frequent hydration.
- Recommendations that workers do not touch their mouth, eyes and nose, and avoid handshakes, kissing or fluid exchanges by lending personal items (e.g. water bottles) to other employees.
- Proper use of masks, since they should only be used by workers with respiratory symptoms or those who are in contact with patients.
- The obligation to stay informed on the crisis.
- The procedures to be followed if a worker begins showing symptoms of COVID-19, and the communication channels to take to inform the employer and authorities.
- Social distancing between workers to prevent the spread of the virus.
In the actual workplace, the employer must provide opportunities for employees to wash hands regularly with soap and water and have access to hand sanitiser. Employers must supply face masks when necessary (e.g. for health-industry employees).
Prevention measures promoted by the national government and the Ministry of Labour include contingency plans to continue operating via telework, home office or remote or remote work and to make working hours more flexible. Work involving face-to-face activities should be avoided.
2. Should workers inform the employer if they are sick?
Yes, given that an infected worker could spread the virus to other staff, workers are obligated to do this, using the permanent communication channels installed by the employer. Workers who leave the jobsite with COVID-19 symptoms are eligible for sick leave. Furthermore, if a subsequent test confirms that a worker is suffering from COVID-19, he must inform the company. In all cases, the worker should follow all instructions given by the employer and authorities.
3. What should the employer do if an employee is infected with the virus or has symptoms?
The employer must take all necessary sanitary measures to isolate the person if the infection occurred in the workplace. Similarly, the employer must immediately notify the authorities to determine the procedures to follow.
If infection has occurred outside the workplace, the employer should advise the employee on how to communicate his status to health authorities. The employer should remain in communication with the employee and give all necessary advice.
An employee should not visit health services (e.g. a hospital or clinic) without calling in advance. Hence, employees in this situation should refrain from using emergency services. If the employer has arranged medical services such as employee health insurance, it is suggested that the employee use the lines of care that these entities provide.
4. Can workers wear face masks on the job site?
In principle, the use of masks should be restricted to people with symptoms or people who care for patients. If work conditions at your company could put worker's airways at risk, the use of face masks are recommended. However, it is important to instruct workers on their proper use, since incorrect usage of masks can generate other risks.
5. Can employees cancel their vacations?
In Colombia, the dates for annual leave are subject to a schedule defined by the employer. Therefore, if the employee wishes to cancel his vacation, a request should be made to the employer, and the employee should await confirmation.
The employer should bear in mind that if employees remain on vacation, they may be isolated from the possibility of infection in the workplace.
6. Can employees refuse to participate in a work trip to a risk area?
In principle, the answer is no, since the order comes from the employer. However, it is not recommended that workers be ordered to go to high-risk areas since the employer's responsibility to limit the spread of the disease is clear. In the case of health sector workers, however, it may be necessary to require employees to provide services in high-risk areas. These workers cannot refuse to comply with such a directive.
Employers should also bear in mind that the national government is currently issuing periodical legal guidelines on travel and movement within the territory. Before considering the placement of a worker, employers should review all government orders at the national, regional and local levels.
7. What measures can be applied at this time regarding employment contracts?
The national government and, in particular, the Ministry of Labour have recommended first-hand analysis of the possibility of continuing business operations and keeping workers employed through remote work at home, teleworking or flexible working hours in the workplace as set down in Circular 021 de 2020. Under the provisions of Circular 033 de 2020, the government also encourages employers and employees to reach mutually satisfactory agreements on the terms of individual contracts and collective bargaining, and to consider suspending payments of extra-legal benefits in order to diminish costs.
If it is necessary, however, for a company to stop the execution of productive activities, the government suggests analysing the possibility of unilaterally scheduling annual leave for employees or sending workers home while still paying their wages through the application of article 140 of the C.S.T. In the case of annual leave, the date of the holiday period can be communicated without the previous 15-day notice to workers through application of Decree 488 of 2020, which allows for one-day notice to an employee before the start of an annual leave.
Another alternative, which companies should consider (depending on their unique circumstances) includes agreeing in writing to unpaid leave with workers by applying the provisions of number 4 of article 51 of the Colombian Labour Code.
In very specific cases, employment contracts may recognise and account for unpredictable and irresistible situations that occur oblivious to the will of the parties, preventing the continuation or execution of employment contracts. A direct and verifiable link between the fact of an overwhelming force and its impact on the execution of employment contracts may – in specific cases – allow contracts to be suspended under provision of number 1 of the Colombian Labour Code. In this situation, a notice of advice, as provided by article 67 of Law 50 of 1990, should be sent to the Ministry of Labour. Afterwards, a judge may analyse this notice to determine if force majeure was present.
Before any decision regarding the suspension of employment contracts, a rigorous legal analysis must be carried out to define the legal viability of the measure, always based on the good faith of the parties and, above all, on the material impossibility of the fulfilment of the object or core of the employment contract.
On the other hand, under Decree 558 of 2020, there is a provision on the temporary modification of the contribution percentage of the General Pension System. Currently, the pension contribution is 16%, in which the employer assumes 12% and the worker, the remaining 4%.
For anyone receiving benefits from the Decree, the payment will not be 16%, but 3% of the Base Income of Contribution (IBC), which covers the administration expenses of the system and the risks of disability and survival. Of this percentage, the employer will assume 2.25% and the worker will assume the remaining 0.75%. Independent workers must assume and pay the total 3% of his pension contribution.
In response to labour issues (and other contingencies), the national government could issue new guidelines and regulatory provisions in order to provide solutions for the different contingencies that impact both the work and business sectors.
8. In case of illness or quarantine would wages have to be paid?
Each specific case would have to be analysed since any disability or medical reason that prevents the provision of employment service must result in a sick leave payment from the Social Security System (EPS), after the third day of leave. Thus, if the person is ill and must remain in quarantine, he should in principle receive medical support for the absence.
9. Can the employer send workers home?
Yes, the employer can request that employees work remotely from home. They can also schedule annual leave or take any other of the previously analysed measures that may be applicable.
10. What happens if the company must close due to the coronavirus?
At the moment, closure of companies due to the pandemic have not yet been ordered, but if ordered in the future, employers must comply while determining whether the closure will be temporary or permanent, and evaluating the over all scope of the situation. Because business closures would lead to the termination of employment contracts, dismissals would be limited according to article 67 of Law 50 of 1990, although this law does provide for the closure of a company or the suspension of activities for circumstances other than those already explained.
It should be noted, however, that in the current situation, sectors such as hotels and tourism, recreation and services in general, have been impacted by COVID-19 by such a magnitude that many companies in the sector have been forced to close operations. These closures have triggered different sets of laws, such as those related to the declaration of insolvency or bankruptcy, increases in contract termination and the process for closing enterprises through the approval of the Ministry of Labour.
11. Is the employer obligated to pay wages if workers must care for their children?
Yes. This is because the pandemic can be considered a serious domestic calamity, which could require the employee to receive paid leave while organising childcare in order to continue working. Remote work or vacation-scheduling alternatives could be applied here to allow workers to be with their children.
12. Is there an obligation to pay wages when a person is infected by COVID-19 for non-compliance with sanitary measures or as ordered by the employer?
This situation should be defined by the social security system through the issuance of disability status, since in principle COVID-19 is a disabling disease. Thus, in principle, regardless of how the employee was infected, disability aide should be paid. An employee in this situation, however, may be found responsible for violating some governmental instruction on the prevention of the epidemic.
13. Can the employee stay home for fear of becoming infected?
In principle, no. An employee must continue working if requested to do so, while following the employer's contingency plans and protocols for stopping the spread of the virus.
14. Can the employer unilaterally order workers to work from home?
Yes, since this order is a contingency measure and the employer's controls and powers allow it to indicate an employee's workplace for the execution of his activities. However, the employer is responsible for verifying and guaranteeing that each worker has adequate tools to work remotely, either because the employer has provided them or because the worker has agreed to acquire them as provided in number 1 of article 57 of the Colombian Labour Code.