New changes in paternity leave and other labor issues

Therefore, and under the understanding that only the presidential sanction of the conciliated text and its publication remain to become a law of the Republic, the main aspects of the referred bill are presented below:

1. Extension of paternity leave.

The approved text contemplates the extension of the paternity leave from 8 working days to two (2) weeks, being able to benefit from this leave not only the spouse or permanent partner of the mother but also the adopting father.

Additionally, the leave may be increased up to a maximum of five (5) weeks depending on the decrease in the structural unemployment rate [1].

Another significant change refers to its recognition, which will be proportional to the weeks contributed by the father during the gestation period.

On this last point, it is necessary to remember that according to Law 1822 of 2017, in order to recognize the paid paternity leave, it is currently required that the father has contributed to the SGSSS during "the weeks prior to the recognition of the leave", being necessary the effective contribution of at least two weeks to the SGSSS, as stated by the Superintendence of Health, in exercise of its jurisdictional functions, and the Constitutional Court [2].

As for the document required for the recognition of this leave, it will continue to be the Civil Registry of Birth, which must be delivered to the EPS within 30 days following the date of birth of the child.

2. Shared parental leave.

By means of this leave, the parents may freely distribute, among themselves, the last six (6) weeks of the mother's leave, with the latter being obliged to take the first twelve (12) weeks after the birth.

For such purpose, both the father and the mother of the minor shall:

• Submit to the EPS the Civil Registry of Birth within 30 days after the birth of the child.
• Agree in a written document, and by mutual agreement, the way in which the weeks will be distributed. This document must be authorized by the treating physician and must be presented to the employer within 30 days after the birth of the child.
• Present to the employer a medical certificate stating: a) the pregnancy status of the woman, or proof of the birth of the child; b) the probable date of delivery, or the date of birth of the child; c) the date from which the leave of absence of each one would begin.

It should also be noted that the basis for the remuneration of this leave will correspond to the salary of the beneficiary for the respective period.

Finally, it should be noted that shared parental leave is independent from maternity and paternity leave.

3. Flexible part-time parental leave.

This leave allows parents to change a determined period of their maternity or paternity leave for a part-time period. For this purpose, the following must be taken into account:

• The beneficiary must submit to the EPS the Civil Registry of Birth within 30 days after the birth of the child.
• The basis for the remuneration of the leave will be the salary of the person who enjoys it for the corresponding period. Regarding the partial work time, its remuneration will be governed according to the labor regulations in force.
• Parents may make use of shared parental leave and flexible part-time parental leave jointly, respecting the applicable requirements for each case.
• In order to access this leave there must be a mutual agreement between the employer and the employee, to which a medical certificate must be attached stating: a) the pregnancy status of the woman, or proof of birth of the child; b) indication of the probable date of delivery, or the date of birth of the child; c) indication of the day from which the leave would begin.
• The worker must consult with his employer the possibility of opting for this leave within thirty (30) days following the birth of the child. On the other hand, the employer must respond to the request within five (5) days following its presentation.
• Mothers may not make use of this leave before the thirteenth (13th) week of their maternity leave, while fathers may make use of it before the second week of their paternity leave.

4. New anti-discrimination measures.

In addition to the changes in paternity leave, the Substantive Labor Code was amended by adding Article 241A, which contemplates the following anti-discrimination measures in labor matters:

    4.1 Pregnancy tests.

The requirement of pregnancy tests as a mandatory requirement for access to or permanence in any labor activity is prohibited.

It is worth mentioning that, although there was previously no express rule establishing such prohibition, the Constitutional Court had already stated in its jurisprudence that there was no duty on the part of the candidate to inform the employer of her pregnancy at the beginning of the employment contract. However, this corporation had also indicated some exceptions by stating that "in exceptional situations in which there is an objective and significant risk to the health, life or integrity of the pregnant woman or the fetus, there is an obligation to inform the employer of the pregnancy before the beginning of the employment contract or as soon as the employer becomes aware of such circumstance" [3].

Accordingly, the conciliated text also contemplates an exception, being the possibility for the employer to request pregnancy tests to the candidate when the work to be performed involves real or potential risks that may negatively affect the normal development of the fetus. Even so, for these cases, prior consent of the candidate or worker will be required.

On the other hand, the law establishes a legal presumption, that is to say that it admits proof to the contrary, by stating that any requirement to order a pregnancy test for access to or permanence in any work activity is discriminatory in nature.

Another fundamental aspect is the power granted to the candidate to select the medical center or laboratory where she prefers to take the blood test, in the event that the pre-occupational or pre-entry medical evaluations involve the practice of such a test. In this regard, it must be said that, although this is intended to benefit the candidate, since sometimes the employer took advantage of this opportunity to clandestinely perform the pregnancy tests, it is difficult to apply in practice because the employer is responsible for sending the candidate to the Service Provider Institutions (IPS) or Health Promoting Entities (EPS) for the performance of such evaluations since it is he who must pay for them in full[4].

Additionally, and although the regulation does not mention it, the entity where the blood test is performed must have physicians specialized in occupational medicine or Occupational Safety and Health (OSH), with a current license in OSH [5] according to the regulations in force for occupational medical evaluations.

Finally, it is important to highlight the employer's obligation to state that no pregnancy test was included when listing the pre-occupational or pre-entry medical evaluations.

4.2. Job interviews.

It is forbidden to ask questions related to reproductive plans in job interviews. Failure to comply with this prohibition is presumed to be a discriminatory practice.

5. Other relevant aspects. 

• Both shared parental leave and flexible part-time parental leave are applicable to public sector workers, which must be regulated by the Administrative Department of the Civil Service within six (6) months following the enactment of the law.
• Failure to comply with the anti-discrimination measures will result in fines of up to 2455 Tax Value Units (UVT), which must be regulated by the Ministry of Labor. Additionally, the worker who has been forced to take a pregnancy test without complying with the provisions of the new article must be hired for the position to which she aspired.
• The publication, dissemination, communication and pedagogy of the new provisions shall be the responsibility of the National Government, headed by the Ministry of Labor, which shall begin within six (6) months following the enactment of the law.

Finally, although it is clear that the new measures promise to benefit many parents to enjoy more time with their children, in practice, it will bring new challenges both for the EPS as regards the form of payment and issuance of shared or flexible part-time leaves, and for the employers to comply with the new requirements and the internal organization required for the enjoyment of these leaves in the manner proposed by the bill.

[1] Such rate shall be defined jointly by the Ministry of Finance and Public Credit, the Bank of the Republic and the National Planning Department.

[2] See Ruling T-114 of 2019.

[3] See Ruling T-583 of 2017.

[4] Resolution 2346 of 2007, Article 11.

[5] Pursuant to the provisions of the second paragraph of Article 11 of Resolution 2346 of 2007.