Fulfillment of the six-month working day dedicated to the family

The Ministry of Labor recently issued a concept through which it unifies the most relevant aspects related to compliance with the obligations outlined in Law 1857 of 2017. In such sense, the following are highlighted:

1. Obligations established for employers:

The aforementioned Law 1857 of 2017 expressly provides that the employer may make the working hours of the worker who must take care of his family members more flexible, when they require his protection and accompaniment due to their age or disability situation. At the same time, it is mandatory to grant the worker a six-month working day to share with his family.

Way of complying with the obligation to make working hours more flexible:

To proceed with the flexibilization of schedules indicated above, the employer must include such provisions in the internal regulations, as indicated in numeral 4 of article 108 of the Substantive Labor Code -CST-. It should be clarified that, according to the regulation, the family group with which the worker has duties of accompaniment and protection is made up of the spouse or permanent partner, and relatives up to the third degree of consanguinity.

Conditions for the granting of the six-month working day:

• For the granting of the semi-annual workday the employer may opt for any of the following options:
• Arrange at its discretion the place and manner of realization of the workday for the worker to share with his family.
• To manage the enjoyment of such workday with the family compensation fund to which the worker is linked.
• To grant the worker a paid day off for the fulfillment of this purpose, when one of the other two options has not been achieved.

Considerations regarding the fulfillment of the six-month working day: 

• When the paid day off is granted, the employer may not request from the worker any proof regarding the manner in which he/she enjoyed this day, by virtue of the principle of good faith.
• The employer is free to schedule a day or several days for his workers, organize them by groups to grant such day, or use different forms that are more convenient, considering the need of the service and the freedom of the company.
• When the employee starts a period of vacation, disability or leave, which prevents him/her from attending the day scheduled by the employer, the latter will not be obliged to grant such day again in the same semester.
• The regulation does not authorize the employer to accumulate working days. Consequently, the Ministry of Labor may impose penalties for violation of the rule when these are granted outside the period.
• Failure to comply with this obligation entitles the Ministry of Labor to impose a penalty between one (1) and five thousand (5,000) legal monthly minimum wages in force -smmlv- (article 486 of the CST), in exercise of its functions of inspection, surveillance and control of compliance with labor regulations.
• The regulation allows the employer to agree with the employee the supplementary working hours once the six-month working day has been granted, for which it must take into account the working day agreed between the parties; and it will recognize the surcharges established by law when the supplementary working hours exceed the maximum legal working day. In any case, the employer may refrain from requesting the complementation of the working day if it so decides.
• The working day may not be granted on days of rest of the employee. 

In conclusion, the concept issued by the Mintrabajo constitutes, undoubtedly, a fundamental guide for compliance with the obligations and duties outlined in Law 1857 of 2017, which clarifies many of the concerns present in employers since the entry into force of the rule in question.