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Colombia

Colombia: Certain Labour Measures will Lose their Validity with the Termination of the Health Emergency

Author: Angélica Carrión

The national government announced that the health emergency (declared in the country by Resolution 385 of 12 March 2020 and extended on several occasions) ended on Thursday 30 June 2022, stating that there were no longer epidemiological reasons to maintain it.

Considering that during the pandemic situation a series of measures were issued in labour matters conditioned by the duration of the health/sanitary emergency, it is important to highlight those measures that companies should review as they will no longer be in force from 1 July 2022:

1. Holiday notice period: The notice period for right to benefit from taking leave will return to the one provided in Article 187 of the Labour Code. One of the main changes after the end of the health emergency is the notice period from the employer to the worker regarding the enjoyment of holidays, which will cease to be 1 day and will return to 15 days prior to enjoyment of holidays.

2. The possibility of agreeing to the working day in the state of Health Emergency ceases: The alternative, temporarily authorised by Decree 770 of 2020, of distributing the ordinary weekly working day of (48) forty-eight hours in four days a week, with a maximum working day of (12) twelve hours for workers, will no longer be in force. It is important to remember that other forms of special working hours provided in Article 161 et seq. of the Labour Code remain in force.

3. Withdraw of severance payments due to an income decrease (Decree 488 of 2020): Workers will no longer be able to argue a decrease in their monthly income, certified by the employer, as grounds to withdraw severance payments (Cesantías). Thus, as of 1 July, workers will only be able to make partial withdrawals of severance payments for the purpose of paying their own, their spouse’s or their children’s higher education tuition fees, as well as for the purchase or remodelling of the home they own.

4. Non-causation of moratorium interest on late payment of contributions to the GSISS (General System of Integral Social Security): Article 26 of Decree 538 of 2020 provided that during the health emergency, no moratorium interest will be caused by contributions to the GSISS that are paid late. This special exception will be in force until the next calendar month following the termination of the emergency, so that this late payment interest will be caused as of 1 August 2022. 

5. Mandatory application of the Evaluation of Psychosocial Risk Factors tool as an employer´s occupational safety and health obligation: Circular 0064 of 7 October 2020, issued by the Ministry of Labour, had indicated that in the current health emergency and given the risk of contagion of Covid-19 it was not feasible to evaluate psychosocial risks by applying the measurement tool in person. Under the provisions of Resolution 2404 of 2019 of the Ministry of Labour, this assessment must be done annually in those companies in which the level of harmful psychosocial factors assessed has been identified as high risk.

6. Remote Work: Special consideration should be given to the validity of so-called alternative forms of work organisation. The government has indicated that during the health emergency, organisations may establish remote work arrangements such as teleworking, remote work, occasionally working from home or other similar arrangements. This means that all the different kinds of remote work can continue to be used after the health emergency is over. Therefore, it is important for all employers to review the adequate type of remote work for the company:

  • Teleworking – Law 1221 of 2008;
  • Remote work – Law 2121 of 2021;
  • Occasionally working from home – Law 2088 of 2021 and Decree 649 of 2022;
  • Home office as a benefit.

Key Action Points for Human Resources and In-house Counsel

  • Considering that during the pandemic situation a series of measures were issued in labour matters conditioned by the duration of the sanitary emergency, it is important to highlight those measures that companies should review since they will return to their previous regulations.
  • During these two years, many companies used the validity of the health emergency to justify enabling working from home. However, as of 1 July 2022 companies must evaluate and determine what other extraordinary and unusual circumstances will be employed as the basis for the utilisation of this practice.