Authors
Before the sanitary emergency declared because of COVID19 that brought the immediate and urgent need to allow employees to work from home, there were already in Colombia specific regulations that stated a work scheme that allowed the performance of work activities “without requiring the physical presence of the employee in the workplace” which is known as teleworking and was implemented through Law 1221 of 2008 and regulated by Decree 884 of 2012.
Both the Law that created teleworking and the Decree that regulates it stablish that in order to implement this work scheme it is necessary to comply with certain formalities and preliminary requirements, that were imposible to accomplish immediately at the moment that the emergency derived from the pandemic required to implement urgent contingency measures.
Therefore, due to this urgent necessity, the Ministry of Labour authorized to implement “home office” as a temporary measure, allowing employees to work from their home without being necessary to comply with the formalities of teleworking. This special work scheme was formally stablished through Law 2088 of May 12, 2021 (recently regulated by Decree 649 of 2022) which in addition to the already existing “teleworking” created “home office” as a legal work scheme that can only be applied on temporary, special and exceptional situations (such as the sanitary emergency, public safety situations, unforeseen events such as floodings or accidents that prevent temporarily to execute activities in a presential way).
To sum up, in accordance to the aforementioned it was clear that there were to options to implement non-presential work, (i) the possibility to implement home office as a temporary scheme, or (ii) in case there was a vocation of permanency, the scheme to apply was teleworking with the correspondent requirements and formalities, choosing one of its modalities (autonomous telework, supplementary telework or mobile telework), to the point that even the Firm had issued a newsflash on May 24, 2021 explaining these 2 definitions and referring to them as “legal work schemes of remote working” being understood that the concept of “remote work” was a gender and that “teleworking” and “home office” were the species.
Nevertheless, on August 3, 2021, the Congress issued Law 2121 of 2021 that stablishes “the creation of a new way to execute the employment contract, named remote work, which will be developed entirely in a remote way” which means, that since the beginning of the employment relationship to its termination there won´t be any presential work. Also, it is important to mention that the Law expressly states that this new scheme “does not share elements that constitute teleworking and home office” , which means that the legislator expressed the intention to create a new scheme different from the ones that already existed.
However, the origin of this new work scheme named “remote work” in our opinion, instead of contributing to the creation of a useful tool that is adjusted to the employers needs and to provide legal solutions, generated the following consequences:
The partial replicate of a scheme that is very similar to the modalities of autonomous teleworking and mobile teleworking.
The wording of some dispositions stated on Law 2121 of 2021, may be contrary to the object of the Law (as will be explained later with examples).
That the initial understanding of “remote work” at the gender that grouped all the modalities of non-presential work has been affected, stablishing it as a new kind of work scheme parallel to teleworking and home office, which we consider will generate confusion in the practice.
In accordance to the aforementioned, we consider that it is relevant to mention that one of the dispositions that creates more confusion, is related to the wording stablished on literal C or article 4 of Law 2121 of 2’21 which states that in remote work “it is not required a determined physical place”, however, Decree 555 of 2022 stablishes on the employer´s obligations “to inform the Occupational Hazard Administrator of the place chosen to execute the services” which allows to conclude that the dispositions related to “no needing a determined physical space” are not entirely true, and instead, it is mandatory to determine a specific place of work, that must be approved by the Occupational Hazard Administrator, which was already applicable on teleworking.
Hence, we consider that the creation of this new scheme named “remote work” as a new sub specie of, while it may be redundant “work in a remote way” did not really bring something new to the table, given the fact that the modalities that already existed, such as autonomous teleworking (working 100% outside of the office, being required to attend the offices only in special occasional situations) and mobile teleworking (working without a specific workplace, using technologies) already allowed to work remotely in an entire way, stablishing the correspondent formal requirements to comply with the employer´s obligations and to guarantee the compliance of minimum health and safety standards.
That being said, in order to being clearer and providing a practical glance in addition to the previously critical opinion, below we state the general characteristics of each modality:
| Home Office | Teleworking | Remote work | |
- Temporary measure - Does not require a formal agreement between the parties, it can be implemented unilaterally, as long as the legal conditions to apply it are present. It is mandatory to inform it through a written communication. - Does not require any report to the Ministry of Labour. However, in accordance to Decree 649 of 2022 the Employer must inform the Occupational Hazard Administrator about the temporary implementation of this scheme. - There is no express obligation to provide tools or ive allowance for the payment of public services. There is only an obligation to pay connectivity allowance for people who earn less than 2 minimum wages. The employee can use his/her own tools and equipment, which must be formalized by mutual agreement, also, the parties can agree on the recognition of a compensation of public services expenses. - It is not necessary to make adjustments to the internal employee handbook. - There is no specific restriction in regards to the possibility of stablishing exclusivity clauses and does not regulate expressly the case of people who submits evidence of their status of caretakers of minors or disables people. | - Has a vocation of permanency - Must be agreed between the parties formally. - Requires report to the Occupation Hazard Administrator and the Ministry of Labour. - The Employer must guarantee that the teleworker has the necessary tools to perform his job duties, such as equipment and internet connection, however, it is not stablished expressly an obligation to provide determined items or grant an specific allowance (being advisable that the employer supplies the necessary tools, or in case the employee will use his/her own equipment or elements, this must be expressly stablished on an agreement between both parties). - It is mandatory to include a teleworking chapter on the internal employee handbook. -There is no specific restriction in regards to the possibility of stablishing exclusivity clauses and does not regulate expressly the case of people who submits evidence of their status of caretakers of minors or disables people. |
- Has a vocation of permanency. - Must be agreed between the parties formally. - Requires that the Occupational Hazard Entity preliminarily approves the place chosen by the parties for the execution of activities. Unlike teleworking, it does not state an obligation to report to the Ministry of Labour who will be developing duties as remote workers. - It is possible that the employee uses his/her own tools and equipment, stablishing the possibility of agreeing with the employer the granting of a “compensation for the usage of tools that are property of the employee”. Also, it is possible to grant an allowance to compensate the expenses of public services, clarifying thad due to the fact that the wording of the Law uses the verb “could” this allows to conclude that this compensation for the usage of employee´s own tools and equipment or costs of public services is not mandatory, and therefore, is merely voluntary. - Neither the Law that created remote work or the Decree that regulates it, stablish obligations to make adjustments to the internal employee handbook. - As new dispositions that are not stablished on the regulations of teleworking and home office, stand out the specific regulations about employees who are also caretakers of minor under 14 years old or disabled people. Also, it is stablished that initially in this modality there would not be exclusivity, unless the parties decide to expressly agree it in case of risks of leak of information. |
In conclusion, if your company is evaluating the possibility to keep a work scheme of 100% remote work or hybrid work (some days presential and other from home or another place) once the sanitary emergency finishes, it is advisable to implement teleworking formally in any of its modalities (clarifying that in the case of hybrid work the applicable modality would be supplementary teleworking, which allows that at least 2 days of the week are worked from home), or remote work in the case of new employment contracts that are going to be 100% performed remotely, reminding that home office will only apply on temporary and exceptional situations.
