Management of workers with pre-existing morbidities

Management of workers with pre-existing morbidities under Resolution 666 of 2020

With the issuance of Resolution 000666 of 2020, the Ministry of Health and Social Protection established the general biosecurity protocol to mitigate, control and adequately manage the pandemic of the new coronavirus causing Covid-19.

Said resolution indicated, in numeral 4.1.1 of chapter 4 of the technical annex, the following:

"Workers over 60 years of age and workers with pre-existing morbidities identified as risk factors for COVID-19 shall perform remote work."

It also indicated that it was the responsibility of the employers "to carry out the analysis of labor reconversion according to the conditions and viability of the productive process, for those cases that require to remain in preventive isolation".

In turn, in numeral 4.6, reference was made to cohabitation with a person of 60 years of age or with persons with pre-existing high-risk diseases for Covid-19, identifying such diseases as:

"Diabetes, Cardiovascular Disease - Arterial Hypertension- AHT, Cerebrovascular Accident - CVA, HIV, cancer, use of corticoids or immunosuppressants, Chronic Obstructive Pulmonary Disease - COPD, poor nutrition (obesity and malnutrition), smokers or with health service personnel".

An analysis of these articles raised many questions for companies, such as the following: what was understood by pre-existing morbidities? Could pre-existing diseases be understood as the same as pre-existing morbidities? Was it an obligation for companies that workers with these conditions remain at home, even if it was not possible for them to perform remote work? Were these workers then prohibited from performing on-site work?

This regulatory gray area remained until the issuance of Circular 030 of 2020 of the Minsalud, called Clarifications of remote or remote work in the over 60s, which put an end to some of the concerns, stating the following:

Facing pre-existing morbidities

The Ministry of Health and Social Protection, referring to the Center for Disease Control and Prevention (CDC), indicated that pre-existing morbidities are defined as any of the following diseases or conditions: (i) diabetes, (ii) arterial hypertension, (iii) pulmonary disease, (iv) heart disease, (v) kidney disease and (vi) others that affect the immune status, such as transplants or cancer.

On whether remote work is mandatory or not

As previously indicated, when the employer has workers who require to remain in preventive isolation, such as workers over 60 years of age and workers with pre-existing morbidities, it must perform an analysis of labor reconversion according to the conditions and viability of the production process.

If the above is carried out, and due to the nature of the functions performed by the worker, it is evident that it is not possible for him/her to continue performing them through the figures of telework, remote or distance work, such workers may perform their work in person as long as the employer complies with the sanitary measures established in Resolution 000666 of 2020 and under the context of the occupational safety and health management system -SG-SST-.

In any case, the employer must prioritize this group of workers and determine why they cannot perform their work remotely and organize them in such a way that in the shifts or activities where they perform their tasks, they have a lower risk of contact with other people.

Likewise, the Ministry also indicated that other alternatives related to Circular 33 of 2020 could be used, such as flexible working hours and salary agreement, early and collective annual leave, paid leave, salary without service, compensable paid leave, modification or suspension of extra-legal benefits and agreement of conventional benefits.

Conclusion

The companies must then identify the workers who present any of the related diseases, whether they are in treatment of these, and determine whether they can perform their functions in telework or remote or distance work.

If due to their functions it is impossible to develop them outside the company's facilities, the safety measures established in the biosafety protocol of the organization should be maximized in order to seek the best and greater protection to this group of workers, with mechanisms such as the following: giving them shifts where there is less contact with other people, checking their temperature more frequently, giving them a special place away from the others in the transport route if provided by the company, extreme hygiene measures in the instruments or work tools that are shared with these workers and other measures that the position and the corporate purpose of the company allow.