Remote Working Legislation, Laws & Regulations in Colombia

Yes, there is. It is important to highlight that before the pandemic in Colombia “teleworking”—i.e. remote working— was already possible and regulated through Law 1221 of 2008, which allowed employees to agree with their employer to work remotely (100% or through hybrid schemes). Nevertheless, during that time “home office” was not expressly regulated and instead, used to be a special extralegal benefit that some companies offered their employees.

Because of the pandemic, the Government allowed companies to implement “home office” as a special contingency measure to allow employees to work from their houses, given that teleworking had certain formalities that could not be completed during the sanitary emergency period.

So, now, home office is regulated by Law 2088 of 2021, which clarifies that home office only applies in exceptional, special and temporary cases. Therefore, employers who want to have remote work (100% remote or hybrid schemes in which the employee partially work from home and partially physically at the Company`s offices) have to implement teleworking with all the formalities stablished on Law 1221 of 2008 and Decree 1227 of 2022.

As mentioned before, it is important to keep in mind that home office is different to teleworking, which is permanent.

Hence, if a company wants to permanently introduce the possibility of working from home, according to Decree 1227 of 2022 it is necessary to mutually agree with each employee how this work scheme will be implemented, and it must sign a contract amendment in which both parties expressly state the teleworking conditions(schedule, cyber security, tools, among other aspects highlighted on Decree 1227 of 2022).

If there is a special situation (for example public order aspects that threaten security or sudden events that make it impossible to work at office) employers are permitted to implement home office unilaterally as a special exceptional measure.

Nevertheless, when considering implementing teleworking permanently, Decree 1227 of 2022 states that its implementation must be the result of a mutual agreement between both the employee and the employer.

As it was stated on question 3, Decree 1227 of 2022 establishes that teleworking must be agreed between both parties. The teleworking model implies agreement between the parties in all cases. However there may be exceptional situations that are impossible for the employee to change and are due to reasons beyond the employee’s control due to which the employee cannot attend the employer's offices and in principle the company must accept these, allowing the employee to work at home or remotely.

One of the main obligations of employers is to provide employees with the supplies and materials they require to duly perform their job activities. Nevertheless, in regards to the tools and equipment in the event of remote work, even though Decree 1227 of 2022 states that employers have the obligation to provide computer equipment and software, the possibility is also established that the employee puts their own equipment at the disposal of the employer, and therefore performs their duties with their own tools or equipment.

Also, Decree 1227 of 2022, mentions that the parties could agree that the employer would grant the employee an allowance to pay for the extra expenses from energy and telecommunications which the employee incurs when working from home. However, it is important to keep in mind that the wording of the mentioned regulation is clear in stating that this is not mandatory and instead applies when the parties agree to do it.

No, as mentioned before, the granting of an allowance to compensate these expenses is merely voluntary if the parties agree to it so. Nevertheless, for employees who earn less than 2 minimum wages and therefore are entitled to receive a legal transportation allowance, it is important to keep in mind that if these employees work remotely, the legal transportation allowance must be granted as “legal connectivity allowance” clarifying that it is the equivalent allowance, maintaining its specific amount, which is established by Law.

No, as mentioned before, the granting of an allowance to compensate for these expenses is merely voluntary if the parties agree to it. Nevertheless, for employees who earn less than 2 minimum wages and are therefore entitled to receive a legal transportation allowance, it is important to keep in mind that when these employees work remotely, the legal transportation allowance must be granted as “legal connectivity allowance” clarifying that is the same allowance, maintaining the specific amount established by Law.

Yes, employers are obligated to include teleworkers on their internal health and safety policies and procedures. Therefore, they must verify that their home or remote workstations comply with the health and safety standards regarding ergonomics and comfort.

Also, employers are obligated to create communication channels and clear routes through which employees who work remotely can report accidents, diseases or any situations that the employer should know about.

Employers who have employees who work remotely through a teleworking scheme must comply with the same obligations they have towards employees who work on site regarding payment of salaries, social security contributions and all general employer obligations stated in the Colombian Labour Statute.

Nevertheless, regarding specific obligations towards employees who are teleworkers, Law 1221 of 2008 and Decree 1227 of 2022 establishes that employers must comply with the following obligations:

• Report the number of employees who telework to both the Ministry of Labour and the Occupational Hazard Administrator.
• Implementation of an internal teleworking policy in which the specific conditions regarding telework are stated and a disconnection policy.

All employers pay social security contributions to the Occupational Hazard Administrators to guarantee coverage of work-related accidents or diseases. Hence, these contributions will cover any labour accidents or illnesses that take place while teleworking, which is why it is extremely important that employers report to the Administrator that an employee will be performing their work activities via teleworking, in order to guarantee coverage. 

Yes, as mentioned above, employees who perform activities remotely are entitled to be included in the Occupational Health and Safety management system, and to receive full occupational hazard coverage from the Integral Social Security System. Therefore, the legislation related to work related accidents and illnesses fully applies to this special type of employee.

In addition, teleworking situations can produce a greater degree of labor exhaustion, due to the lack of disconnection and it is always be recommended to introduce a complementary policy of labor disconnection that suits the dynamics of the company.

No, as mentioned before, Decree 1227 of 2022 does not include an obligation for employers to pay the employee the expenses derived from working from home, and neither does it include dispositions related to the possibility of charging these expenses against the costs the employee saves through teleworking (transportation, lunch in restaurants among others).

Yes, in addition to the general obligations of employees that apply to both remote and on-site employees, those who execute their job duties through teleworking have additional special obligations related to reporting possible accidents, diseases or relevant updates promptly and through the communication channels established by the employer, complying with cyber security policies, participating in the workshops scheduled by the employer, and complying with the established work schedule the same way as on-site employees.

Yes, with the recent visa resolution (Resolution 5477 de 2022), the Ministry of Foreign Affairs indicated the possibility of applying for a new type of visa related to digital nomads. This type of visa is granted as a visitors’ visa and allows a non-Columbian to stay in Colombia for two years with a remote job from a country other than Colombia, as long as the non-Columbian earns approximately 750 euros and has a medical insurance with coverage on Colombian soil.  

This tendency to formalize the permanence of digital nomads was established with the Covid-19 pandemic and various alternatives have been generated in countries such as Costa Rica, Panama and Mexico, seeking to allow these foreigners to stay in the country for longer than the time they are allowed as tourists.

Finally, if a non-Columbian is going to be hired by a Colombian entity, they must apply for an employee visa in order to be able to provide services to a local company and be affiliated to the Colombian Social Security System.

As per Colombian Law, remote work consists of a way of executing the employment contract, in which services are rendered by the employee entirely using technology and telecommunication tools, and therefore employee and employer never interact personally throughout the employment relationship. This definition applies regardless of the city, country, or territory the employee renders his services from (abroad or nationally). There are two main laws regulating remote work in Colombia – Law 2121 of 2021 and Decree 555 of 2022. However, both laws refer to remote work within Colombian territory, which means there is no regulation regarding remote work abroad. Nevertheless, upcoming employment and labour reform does intend to establish a new modality, known as transnational teleworking, which is currently under debate in the Congress.

Regarding remote work abroad, Colombian labour law remains the applicable legislation, as the employer must guarantee the minimum rights and conditions that the regulation establishes for employees working in Colombia. However, foreign law might apply as well, depending on the country in which the employee is settled and the length of the individual’s stay. Different regulations may also apply depending on the provisions stated in the employment contract. In addition, from a migratory standpoint, it is important to verify the host country´s local immigration law in order to avoid migratory breaches for employees on irregular stays.

Even though the employee performs his duties from abroad in favour of an employer in Colombia under an employment contract regulated by Colombian Law, the employment relationship remains unaltered. Thus, the employer is still obliged to comply with the corresponding social security obligations regardless of the country rendering the service. Regarding labour risks, Colombian courts have recognised the obligation for Colombian Occupational Hazard Administrators (ARLs) to provide coverage abroad under certain conditions (i.e. the employer should inform the ARL and verify its options in relation to foreign coverage). This means that even though the employee is not on Colombian soil, the employer must continue to pay the correspondent occupational hazard contributions to guarantee this coverage.

However, regarding the Health System, because of the principle of territoriality of the law, it is possible for an employer to refrain from making these payments since Colombian healthcare providers (EPSs) would encounter serious limitations to their coverage given the fact that any health issue presented or suffered by the employee should then be covered abroad. Therefore, it is recommended that the employee acquire a health insurance policy or take responsibility for any expenses in order to guarantee due medical attention. This decision would suspend access to healthcare for the employee’s beneficiaries. Hence, for employees who have beneficiaries remaining in Colombia, it is advisable to continue making contribution payments so that coverage is not affected.

Importantly, ongoing labour reform intends to create “transnational teleworking” in order to regulate such matters. Through this reform, the current government seeks to oblige employers to provide remote employees who are working abroad with health insurance policies to guarantee their health coverage. Additionally, the employer should provide general coverage as if it was the system in case the system´s benefits cannot be guaranteed.

Finally, regarding the Pensions System, both the employee and the employer are obliged to continue making corresponding payments because their relationship is still governed by an employment contract, which makes the employee a mandatory contributor.

In Colombia, there is no specific tax regulations for short-term remote work abroad nor are there any tax consequences since this type of work does not apply to tax residency status. However, it must be considered that a foreign individual working remotely in Colombia could trigger the incorporation of a Permanent Establishment if the remote worker meets the criteria set down by the Colombian Tax Code (CTC) and the provisions of the Double Taxation Treaties in force (DTT).

In that sense, article 20-1 of the CTC establishes that a permanent establishment is a fixed place of business located in Colombian territory through which a foreign company or a non-resident individual can carry out its corporate business purposes partially or entirely. This concept also includes the incorporation of a branch, agencies, offices, companies, manufactures, factories, mines, quarries, wells, and oil wells.

Tax residency in Colombia is determined by several factors. Therefore, an individual could be considered an income tax resident if the individual meets at least one if the following requirements: (i) he/she remains continuously or discontinuously in the country for more than 183 calendar days (including the traveling days of entry and exit of the country) during any period during 365 consecutive calendar days; (ii) he/she is exempt from taxation in the country where they are on mission with respect to all or part of their income and occasional gains during the respective year or taxable period due to a relationship with the foreign service of the Colombian State or with persons who are in the foreign service of the Colombian State, and by means of the Vienna conventions on diplomatic and consular relations; (iii) he/she during the taxable period qualify for any of the following scenarios:

• Has a permanent partner or children that are tax residents in Colombia;
• Has 50% or more of his/her income from a national source, or the income is administered in the country;
• Has 50% or more of his/her assets owned in the country.

Furthermore, individuals will be considered national taxpayers if they: (iv) were asked to prove their foreign tax residency before Colombian tax authorities and failed to do so; and (v) if they have tax residence in a jurisdiction qualified by the National Government as a tax haven.

In that sense, once an individual is qualified as a tax resident, he/she must file an income tax return for global sourced income. In the case of a foreign tax resident who needs to file an income tax return for Colombian source income, he/she must consider the provisions of the DTT in force if applicable.

Even though the relevance of remote work schemes increased in significance in Colombia after the pandemic, nowadays the main tendency is the implementation of hybrid work schemes, in which employees provide their services partially from home (around 2 or 3 days per week) and the rest work on-site in the Company`s offices, considering that this scheme has allowed employees to have the best of both worlds. Hence, according to Decree 1227 of 2022, this type of work is considered as “supplementary teleworking” and therefore employers have the aforementioned obligations derived from the teleworking regulations.