Covid-19 business criminal law and other issues in Colombia

In Colombia corporate criminal liability does not exist, therefore the exposure does not extend to the companies at a criminal level, but tort law would allow for claims stemming from improper health and safety measures. Directors, board members and other employees can be held personally liable in a criminal trial for injuries and/or deaths that may occur as a consequence of improper compliance with health and safety measures. As the statutory limitation period is 10 years for tort claims, and the procedures take a minimum of two years for a first circuit decision, we do not yet know how successful these claims will be. Nevertheless, all businesses, whether covered by the emergency legislation or not, must comply with existing health and safety laws and regulations. Breach of those requirements may carry administrative and/or civil sanctions. Therefore, businesses must fulfil the requirements made by the Ministry of Health regarding biosecurity protocols to avoid sanctions from the Municipalities or the Ministries of Health and/or Labour.

Health Protection (Coronavirus, Restrictions) (Colombia) Regulations 2020 (the “Regulations”)

Restrictions came into effect on March 17^th, 2020 after the Declaration of the State of Economic, Social and Ecological Emergency through the Decree 417 of 2020. Derived from this Main Decree, the Decree 539 of the Ministry of Health regulated the measures and restrictions in terms of biosecurity to prevent the expansion of the pandemic.

In general terms, these Regulations limit movement outside the home and limit gatherings in public places. Certain categories of business must either close in full (such as cinemas, gyms and pubs) or part, or else cease certain operations (selling food or drink for on-premises consumption) while the Regulations are in force.  Some businesses, such as food retailers, pharmacies and banks, are permitted to continue operations (subject to limitations). Nevertheless, restaurants are only allowed to operate via delivery services, while retailers, pharmacies, banks, and supermarkets are open to public with strict biosecurity protocols, such as by limiting in the number of customers in the premises.

Health & Safety laws

Reasonable practicability requirements

All employers must continue to comply with their existing health and safety, and all other legal obligations. Those existing obligations require businesses, so far as is reasonably practicable, to ensure the health, safety and welfare of not only their employees, but also third parties such as contractors, customers and members of the general public. Breach of these requirements may constitute a criminal offence to the officers or employees of the Company according to Colombian Criminal law, or also may constitute civil or administrative liability on the part of the Company, its officers and/or employees, according to the Ministry of Health and Social Protection, and the Ministry of Labour.

Back to normality

At the time of this report the Columbia is starting to reopen its economy. With that target the government is regulating the reopening of some industries and will graduality continue to regulate all other industries. Any sector or industry that re-opens must fulfil the biosecurity protocols of Resolution 666 of 2020 of the Ministry of Health and Social Protection, these measures includes social distancing, flexible working hours, the use of masks and gloves, and periodical temperature controls, among others. For example, from April 27^th, 2020 Manufacturing and Construction industries restarted their operations around the country, having to apply all the protocols. In case of breach of any of these protocols the Ministry of Health and Social Protection can impose fines up to  approximately 2.5 million dollars and can temporarily or permanently close businesses according to Decree 780 of 2016. Also, if an action is a labour offense as well, the Ministry of Labour can impose fines up approximately  1.25 million dollars and retains the ability to temporarily close businesses according to Section 486 of the Colombian Labour Code, and Decree 1072 of 2015.

Civil liability related to criminal liability

According to Colombian criminal law, after any person is declared guilty of a crime there is a term of 30 days to start an incidental hearing of redress, which is a civil procedure within the criminal procedure. The claims of this hearing are related to any damage that the defendant has caused to any of the proven victims of the criminal conduct, and third parties might be call as third liable parties. As so, if any officer, employee or counsel of a company is convicted in relation to his functions within the company, the legal entity might be called as a third liable party in the incidental hearing of redress and may be held civilly liable. Therefore, even though in Colombia companies cannot be held criminally liable there might be civil consequences derived from the criminal acts of their officers, counsels or employees.

Senior Management and other company representatives can be indicted under criminal charges for non-compliance of sanitary measures. The indictment will depend on the individual violation, and for simple violations with no specific risk of propagation of the virus sanctions will be fines imposed onto the corporation. But if the violations cause direct risk of propagation, or actually leads to contagion, then criminal liability is likely to be sought on the directors and managers involved in the decision-making process. The crimes that may be indicted are:

1. Violation of health and safety measures (Section 368 of CCC): This measure has been used against all people violating preventive quarantine i.e. imposed on international travellers or people organizing clandestine parties regardless of whether in a rural or an urban area (penalty of 4 to 8 years of imprisonment).
2. Propagation of an epidemic (Section 369 of CCC): This measure is used when an individual is violating health and safety measures, has the virus and is aware of this situation and therefore carries a higher penalty (4 to 10 years of imprisonment).
3. Wilful murder (Homicidio doloso) (Section 103 of CCC): This measure has been used in one case related to a physician that travelled abroad without letting the hospital he works in know. After he came back to the country, he went back to work and caused mass infection and two of his colleagues died. The hospital has filed a request for investigation claiming wilful murder in this case and this position is gaining traction.

Since there is no criminal liability for legal entities in Colombia penalties for businesses may only be imposed through civil or administrative liability. Their management can also be sanctioned with criminal penalties.

Non-compliance regarding COVID-19 is likely to be associated with the breach of health and safety measures introduced by Resolution 666 of 2020 of the Ministry of Health and Social Protection. If breached, the Ministry of Health and Social Protection and the Ministry of Labour may impose fines, as well as the temporary or permanent closure of businesses. The businesses and their management may be jointly liable for payment. Fines can go up toaround 2 .5 million dollars if imposed by the Ministry of Health and Social Protection, and up to 1.25 million dollars approx. if imposed by the Ministry of Labour.

Criminal penalties can only be imposed upon the businesses’ management. These penalties can be imprisonment and/or fines, depending on which criminal act was committed. Nevertheless, the main crimes related to COVID-19 would require imprisonment penalties.

Although legal entities cannot be held criminally liable, it is possible that if any member of its management is found criminally liable of criminal conduct committed while in exercise of his or her functions within the company, the company may be called upon as a liable third party in the incident of redress, and this would make the business jointly liable for the repayment of any damages that have been caused, such as death or injuries.

In Colombia there has been extensive prosecution regarding this matter. According to news outlets over 150 people have been indicted to date. Actions such as organizing illegal parties, knowingly continuing to work whilst having the virus, or continuing with suspended activities such as prayer meetings, have been the main focus of prosecution. As the country moves into the reactivation of productive sectors, the Fiscalía General has announced that prosecution will ensue against those violating sanitary measures in their productive tasks.

According to Decree 593 of 2020, the lockdown was extended until May 27^th, 2020. However, the Colombian Government has sought to reopen the economy progressively since April 27^th, 2020. Despite that, the referred Decree continues to limit the free movement of persons except for those who are within the 41 exceptions included in the decrees. In that sense, the National Government has indicated that the sectors within the exceptions are those necessary to guarantee the life and health of Colombian population. Therefore, the sectors exempted from preventive isolation are health, agriculture, finance, infrastructure, and manufacturing, amongst others.

Likewise, the Colombian National Government indicated that during the time that the health emergency lasts, the private and public companies and entities should make sure that their employees, whose physical presence is not necessary in the work place, carry out their employment from their homes.

If it is not possible to work from home, and if the companies are within the exceptions indicated in Decree 539, employees can still travel for work purposes if they are not showing coronavirus symptoms. Under these circumstances, companies must fulfil the biosecurity protocols issued by the Ministry of Health through Resolution 666 of 2020 which are aimed at minimizing the factors that can generate disease transmission.

Some of the responsibilities established by the Resolution for the employers are: (1) explaining and educating their employees regarding the measures established by the Ministry of Health; (2) adopting administrative control measures to reduce exposure, such as flexible working hours, as well as encouraging working at home; (3) reporting suspected and confirmed cases of COVID – 19; and (3) providing employees with personal protection equipment that should be used during the work actives.

Some of the responsibilities established for the employees are: (1) to comply with the biosafety protocols adopted and adapted by the employer during the remaining time in the work place; (2) to report to the employer any case of contagion that may occur in the work place or his/her family; and (3) to adopt health care measures and report to the employer his/her health status, especially related to symptoms of respiratory disease. This, in addition to the proper use of facemasks, hand washing (with soap and disposable towels), social distancing and proper disinfection of workspaces and equipment.

It should be noted that the Ministry of Health issued a general biosafety standard protocol along with one specialized protocol for each sector within the 41 exceptions. The Ministry of Health also published a checklist to ensure the proper adoption of the guidelines outlined in the Resolution 666 as well as informative guidance linked to the government’s national framework for combating the pandemic.

Any failure to comply with these biosecurity protocols may be deemed a breach of the health and safety law. Here, the Ministry of Health and the Ministry of Labour can impose fines (as explained above in question No. 1). Also, in certain cases, the Office of the Attorney General can initiate criminal prosecution of the crimes of violation of health and safety measures (described under section 368 of CCC) or propagation of an epidemic (described under section 367 of CCC), depending on whether the violation leads to actual contagion of the COVID 19 virus.

Companies that do not comply with the biosecurity regulations imposed by the government or that are not diligent to avoid infection within their facilities or the community may face different types of responsibility towards employees, customers, or third parties.

Regarding employees, it would be engage a liability derived from the employment contract. The employer is obliged to compensate for the damages caused to his employees in the course of their work. In Colombia, these damages are partially covered by compulsory insurance policies that cover employment risks and the shortfall must be paid by the employer.

In respect of clients and third parties, there could be a non-contractual civil liability.

In employment matters and non-contractual civil liability, the company will be liable when it engages in negligent or wilful conduct and that behaviour generates real and quantifiable damage to another person.

If the same behaviour affects a group of people, they can unite in the same action and accumulate their claims, but each party must prove its harm and the causal link with the behaviour.