We are facing an economy that is far from stabilizing. Uncertainty in labor relations has taken over our agendas.
Due to COVID-19 and all the government measures in the face of this health emergency, the entire country is facing situations that are not fully contemplated in the law. These have required constant study and a search for equitable and just solutions since it affects all sectors of the economy and involves both workers and employers.
Next, it will seek to solve some of the most frequent doubts that have been presented with the extensions of the measures decreed by the government:
How should the employer proceed when there is suspicion that a worker is infected? Could you force him to take the test?
Yes, article 58 of the Código Sustantivo del Trabajo establishes, among the special obligations of workers: “To abide by and comply with orders and instructions (from the employer)”; “Provide the possible collaboration in the event of an accident or imminent risk that affects or threatens people” and “observe the hygienic preventive measures prescribed by the medical service or health authorities.” They are the first, sixth, and seventh numerals, respectively.
However, delivery of test results can take several days, sometimes even longer than the disability EPS grants. In this case, the employer can also order the worker to stay home until the result is received to protect both the worker with symptoms and others.
Another frequent question is whether a family member of the worker, who also lives with him, tests positive for COVID-19 is considered a domestic calamity. Yes, the answer is to manage this, and it is necessary to refer to the Internal Regulations of the company to review what is contemplated for this situation. If you do not have said regulation, you can refer to article 57 of the CST, numeral 6.
Main effects of the measures taken at the beginning of the quarantine
When the President of the Republic issued the decree that established a state of emergency for our country, the Ministry of Labor, through a series of circulars, expressed different alternatives to mitigate the impact of the quarantine, including anticipated vacations, licenses, work at home and telecommuting.
The measure most welcomed by Colombian companies at the beginning was that of early vacations. Faced with them, with the passing of days and the prolongation of this situation, the concern has arisen that if terminating a work contract and paying social benefits, those vacations that were paid in advance can be discounted. The answer is no, even if the worker has not completed the year to use them. The early vacation decision could have been made unilaterally by the employer.
Regarding licenses, both paid and unpaid, the following should be taken into account:
1. They had to be agreed upon between workers and employers (preferably in writing).
2. The payment of social security is maintained on behalf of the employer.
3. If a paid leave was agreed upon, the transportation subsidy is not paid.
4. The period that the license lasts can be deducted to settle vacations and severance pay.
It is also good to emphasize that one of the mentioned circulars was precise in establishing that there should be no pressure from the employers, but it generated doubt. It was that the initiative could be from the employer. The law is not specified in this regard. It simply speaks of the will of the parties. Therefore, the answer is affirmative. The initiative to propose the leave may perfectly be the employer, and the important thing is that the worker’s will has not been pressured.
Another frequent question is whether the employer who initially agreed to leave can terminate the employment contracts, and the answer is yes. However, the obligation to compensate the worker remains when there is no just cause for dismissal (as well as the other rules that condition this decision).
Teleworking is another of the figures suggested by the Ministry of Labor and one of the most welcomed by companies. Initially, the decree established that it was not necessary to comply with the norms of Law 1221 of 2008 and Decree 884 of 2012; however, the quarantine was not expected to last that long.
Therefore, it is necessary to review and implement the requirements in these regulations to protect the worker and grant guarantees to the company for the proper management and execution of this modality.
When adopting teleworking, the ARL must be informed of the workers who would carry it out and the