Employment protection measures during the containment phase of COVID-19

The Ministry of Labor, through Circular No. 0021, presented the guidelines that may be considered by employers and workers in order to protect employment and productive activity, which are as follows:

1. HOMEWORK: Employer and worker may agree to provide the service from the worker's domicile, in accordance with the provisions of numeral 4 of article 6 of Law 1221 of 2008. In any case, it is necessary to indicate that this modality only operates occasionally, temporarily, and exceptionally, and does not constitute teleworking.

2. TELEWORKING: Another alternative available to the employer consists in agreeing with the employee the provision of the service with the support of Information and Communication Technologies (ICT), allowing the employee to comply with his workload without the need to go to the workplace in person.

It is worth mentioning that the application of this modality requires compliance with certain requirements set forth in Decree 1072 of 2015, among which it is worth mentioning its written stipulation, equal treatment, and prior verification by the employer of the job position.

3. FLEXIBLE WORKING TIME: Pursuant to the provisions of the Substantive Labor Code (CST), the working time, as a rule, may be established by the employer or set within the limits established by law (maximum 8 hours per day and 48 hours per week).

However, the norm in question empowers the employer to agree on successive work shifts (article 161 paragraph c) or to establish flexible daily work shifts (article 161 paragraph d).

In this sense, employers may modify the working hours of their employees to avoid the agglomeration of personnel, not only in the workplace but also in the mass transportation systems.

4. ANNUAL, ANTICIPATED AND COLLECTIVE HOLIDAYS: The CST states that all workers who have rendered their services for 1 year are entitled to 15 consecutive working days of paid vacation (article 186, numeral 1).

Likewise, the law provides that the employer may grant early vacations to its workers, that is, before causing the right or set collective vacations, even if they have not completed the year of services. In both cases, it must be considered that: (i) The vacations must be paid to the employee with the salary earned at the time of the vacation; and (ii) The employee may not demand that he/she be assigned a new vacation period after completing the year of work.

It should be recalled that, with respect to collective vacations, the CST establishes that the employer must inform the employee, 15 days in advance, the date on which the vacations will be granted. However, and as a strategy to face the contingency stage of COVID-19 and mitigate its effects, this entity has indicated that workers and employers may agree at any time the beginning of the enjoyment of accumulated, early, or collective vacations.

5. PAID LEAVE - SALARY WITHOUT SERVICE: In this regard, the circular states that in cases of serious domestic calamity, duly proven, it is the employer's responsibility to grant the respective leaves to the worker.

On the other hand, and in accordance with the provisions of article 140 of the CST, the employer may voluntarily determine the payment of the salary to the employee without the need for the employee to render the service.

In conclusion, and in accordance with the different alternatives described above, it will be up to the employer to determine which of them is more beneficial for its company, so that its business activity is not so affected by the health emergency faced by the country and the rights to work, safety and health of its workers are protected in the same way.